Proposed Rule: Worker Sfety and Health Program

Wednesday,
January 26, 2005
Part III
Department of
Energy
10 CFR Part 851
Worker Safety and Health Program;
Proposed Rule
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3812 Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Proposed Rules
DEPARTMENT OF ENERGY Washington DC 20585–0270, 202–586– applicable DOE Orders into a contract
4714, e-mail: jackie.rogers@hq.doe.gov. unless a contractor develops a tailored
10 CFR Part 851 SUPPLEMENTARY INFORMATION: set of standards and obtains DOE
[Docket No. EH–RM–04–WSHP] approval to incorporate this tailored set
I. Introduction.
II. Supplemental Proposal.
in place of the applicable DOE Orders.
RIN 1901–AA99 In 2002, Congress directed DOE to
III. Procedural Review Requirements.
A. Review Under Executive Order 12866. promulgate regulations on worker safety
Worker Safety and Health Program and health to govern the conduct of
B. Review Under Executive Order 12988.
AGENCY: Office of Environment, Safety C. Review Under Executive Order 13132. contractors with Price-Anderson
and Health, Department of Energy. D. Review Under Executive Order 13175. indemnification agreements in their
ACTION: Supplemental notice of
E. Reviews Under the Regulatory contracts. Specifically, section 3173 of
Flexibility Act. the National Defense Authorization Act
proposed rulemaking and opportunity F. Review Under the Paperwork Reduction (NDAA) amended the AEA to add
for public comment. Act. section 234C (codified as 42 U.S.C.
G. Review Under the National 2282c) that requires DOE to promulgate
SUMMARY: The Department of Energy Environmental Policy Act.
(DOE) is issuing a supplemental H. Review Under the Unfunded Mandates
worker safety and health regulations
proposal to implement the statutory Reform Act. that maintain ‘‘the level of protection
mandate of section 3173 of the Bob I. Review Under Executive Order 13211. currently provided to * * * workers.’’
Stump National Defense Authorization J. Review Under the Treasury and General Pub. L. 107–314 (December 2, 2002).
Act for Fiscal Year 2003 to establish Government Appropriations Act, 1999. These regulations are to include
worker safety and health regulations to K. Review Under the Treasury and General ‘‘flexibility to tailor implementation
govern contractor activities at DOE Government Appropriations Act, 2001. * * * to reflect activities and hazards
IV. Public Comment Procedures. associated with a particular work
workplaces. The supplemental proposal
A. Written Comments. environment; to take into account
reflects consultations with the Defense B. Public Hearings.
Nuclear Facilities Safety Board special circumstances for facilities
(DNFSB), as well as comments received I. Introduction permanently closed, demolished, or title
from members of the public. transferred; achieve national security
DOE has broad authority to regulate
DATES: The comment period will end on
missions.’’ Section 234C also makes a
worker safety and health pursuant to the DOE contractor with such an
April 26, 2005. Public hearings will be Atomic Energy Act of 1954 (AEA), 42
held on March 29 and 30, 2005 from 9 indemnification agreement that violates
U.S.C. 2011 et seq., the Energy these regulations subject to civil
a.m. to 12 p.m. and from 1:30 p.m. to Reorganization Act of 1974 (ERA), 42 penalties similar to the authority
5 p.m. Requests to speak at the hearings U.S.C. 5801–5911, and the Department Congress granted to DOE in 1988 with
should be phoned in to Jacqueline D. of Energy Organization Act (DOEOA), respect to civil penalties. Section 234C
Rogers, 202–586–4714, by March 28, 42 U.S.C. 7101–7352. DOE currently also directed DOE to insert in such
2005. Each presentation is limited to 10 exercises this authority in a contracts a clause providing for
minutes. comprehensive manner by incorporating reducing contractor fees and other
ADDRESSES: Written comments (three appropriate provisions on worker safety payments in the event of a violation by
copies) should be addressed to: and health into the contracts under a contractor or contractor employee of
Jacqueline D. Rogers, U.S. Department which work is performed at DOE any regulation promulgated under
of Energy, Docket Number EH–RM–03– workplaces. During the past decade, section 234C while specifying that both
WSH; Room GA–098, 1000 DOE has taken steps to ensure that sanctions may not be used for the same
Independence Avenue, SW., contractual provisions on worker safety violation.
Washington DC 20585–0270. and health are tailored to reflect On December 8, 2003, DOE published
Alternatively, comments can be filed particular workplace environments. In a notice of proposed rulemaking to
electronically by e-mail to: particular, the Integration of implement section 3173 of the NDAA
rule851.comments@hq.doe.gov noting Environment, Health and Safety into (68 FR 68276). The December proposal
‘‘Worker Safety and Health Rule Work Planning and Execution clause set was intended to codify existing DOE
Comments’’ in the subject line. forth in the DOE procurement practices in order to ensure the worker
Copies of the public hearing regulations requires DOE contractors to health and safety regulations would
transcripts, written comments received, establish an integrated safety provide DOE workers a level of
and any other docket material may be management system. 48 CFR 952.223– protection equivalent to that currently
reviewed on the Web site specially 71 and 970.5223–1. As part of this afforded them. Specifically, under the
established for this proceeding. The process, a contractor must define the December proposal, a contractor would
Internet Web site is http:// work to be performed, analyze the comply with either a set of requirements
www.eh.doe.gov/rulemakingwsh. potential hazards associated with the based primarily on the provisions of
The public hearings for this work, and identify a set of standards DOE Order 440.1A, Worker Protection
rulemaking will be held in Washington, and controls that are sufficient to ensure Management for DOE Federal and
DC at the Holiday Inn-Washington safety and health if implemented Contractor Employees, the current DOE
Capitol, 550 C Street, SW., Washington, properly. The identified standards and Order on worker health and safety, or a
DC 20024. controls are incorporated as contractual tailored set of requirements approved by
For more information concerning requirements through the Laws, DOE. The contractor would implement
public participation in this rulemaking Regulations and DOE Directives clause these requirements pursuant to a worker
proceeding, see Section IV of this notice set forth in the DOE procurement health and safety program approved by
(Public Comment Procedures). regulations. 48 CFR 970.0470–2 and DOE.
FOR FURTHER INFORMATION CONTACT: 970.5204–2. Specifically, the Laws, On January 1, 2004, DOE held a video
Jacqueline D. Rogers, U.S. Department Regulations and DOE Directives clause conference to allow DOE employees,
of Energy, Room GA–089, 1000 set forth in the DOE procurement DOE contractors, contractor employees,
Independence Avenue, SW., regulations requires the incorporation of and employee representatives to become
Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Proposed Rules 3813
familiar with the December proposal. consensus standards included in today’s limits that are less protective than the
DOE held public hearings on the supplemental proposal provide an limits required by subpart C; not
December proposal in Washington, DC appropriate basis for enforcing worker diminish the level of protection afforded
on January 21, 2004, and in Golden, safety and health requirements at DOE workers; and involve a special
Colorado on February 4, 2004. In facilities. circumstance. The proposed list of
addition to the oral comments at the DOE does not expect that codification special circumstances includes three
public hearings, DOE received of these requirements will result in situations not included in the
approximately 50 written comments on significant increased costs since, to a exemption process set forth in Part 820.
the December proposal. very large extent, they are based on The additional situations would be
On February 27, 2004, after becoming existing provisions of DOE Order situations where: an exemption would
aware that the DNFSB had concerns 440.1A, DOE Order 420 and DOE Notice contribute to tailoring the requirements
with regard to the December proposal, 450.7 that have been incorporated into of this part to reflect the hazards and
DOE suspended the rulemaking in order most existing DOE contracts through the facilities associated with a particular
to consult with the DNFSB and to Integration of Environment, Health and work environment; a facility is to be,
consider comments received from other Safety into Work Planning and permanently closed and demolished, or
stakeholders on the December proposal. Execution clause and the Laws, title is expected to be transferred to
(69 FR 9277) As a result of its Regulations and DOE Directives clause. another entity for reuse; or an
consultation with the DNFSB and Accordingly, most contractors already exemption would contribute
consideration of other comments, DOE should be implementing the substance substantially to achieving a national
is now restarting the rulemaking of the proposed requirements to the security mission of the Department of
proceeding through the issuance of this extent applicable to the hazards Energy in an efficient and timely
notice that sets forth a supplemental identified for a particular workplace manner. The proposed addition of these
proposal, announces additional public environment. In addition, DOE expects three special circumstances is intended
hearings and provides the opportunity that the implementation guidance for to ensure the supplemental proposal
for further written comments. the proposed requirements would be would have the regulatory flexibility
essentially the same as the mandated by the NDAA.
II. Supplemental Proposal
implementation guidance for the DOE requests comments as to whether
The supplemental proposal contains corresponding provisions in DOE Order the exemption process is the most
several provisions that differ from those 440.1A, DOE Order 420 and DOE Notice appropriate or effective method to:
in the December proposal. These 450.7 and that contractors would make Ensure sufficient regulatory flexibility to
proposed provisions incorporate use of analyses, evaluations and work address the myriad of workplace
approaches put forth by the DNFSB planning already undertaken to meet environments across the DOE complex;
during consultations, as well as by the their existing contractual worker health maintain a level of protection equivalent
comments on the December proposal. and safety obligations. DOE requests to that currently afforded workers; take
Specifically, the supplemental proposal comments from any person who advantage of worker safety and health
contains provisions that would: (1) believes that codification will result in programs already implemented to meet
Codify a minimum set of safety and significant increased costs. These existing contractual obligations; and
health requirements with which comments should identify the reasons minimize unnecessary costs. Comments
contractors must comply; (2) establish a for the increased costs and potential should identify potential modifications
formal exemption process which changes to the supplemental proposal or alternative approaches.
requires approval by the Secretarial that could reduce or eliminate increased Subpart B of the supplemental
Officer with line management costs. proposal sets forth the proposed
responsibility and provides for Subpart D of the supplemental requirements for a contractor to
significant involvement by the Assistant proposal sets forth a proposed develop, implement, and maintain a
Secretary for Environment, Safety and exemption process by which the worker safety and health program and
Health; (3) delineate the role of the Secretarial Officer with line for DOE to approve the program.
worker safety and health program and management responsibility for a Subpart B would make clear that the
its relationship to integrated safety contractor can relieve the contractor overarching objectives for a program
management; (4) set forth the general from complying with a particular must be: Provision of a place of
duties of contractors responsible for requirement with respect to a particular employment that is free from recognized
DOE workplaces; and (5) limit the scope workplace. The Assistant Secretary for workplace hazards that are causing or
of the regulations to contractor activities Environment, Health and Safety would are likely to cause death or serious
at DOE sites. have the opportunity to review and bodily harm to workers; and adequately
Subpart C of the supplemental comment on an exemption prior to its protecting workers from identified
proposal sets forth the proposed worker issuance and, in the case of a non-NNSA hazards. These objectives are intended
safety and health requirements with contractor, would have the option to to ensure that the statutory standards in
which a contractor would comply. non-concur in the issuance of an the AEA and the Occupational Safety
These proposed requirements exemption. Subpart D is based on the and Health Act are met.
correspond, to a large extent, with the existing exemption process for nuclear Subpart B is based on the existing
provisions set forth in Appendix A to safety requirements that is set forth in process for establishing worker safety
the December proposal. These 10 CFR part 820. Subpart D contains and health programs pursuant to the
requirements include a variety of OSHA specific provisions that would require Integration of Environment, Health and
and consensus standards, and these any exemption to: Adequately protect Safety into Work Planning and
standards would be legally binding on the safety and health of workers; be Execution clause and DOE Order 440.
a contractor to the extent that a consistent with a safe and healthful Specifically, a contractor responsible for
requirement is applicable to the hazards workplace free from recognized a covered workplace would identify
identified for a particular workplace workplace hazards that are causing or existing and potential workplace
environment. DOE invites comments on are likely to cause death or serious hazards and assess the risk of associated
the question of whether the OSHA and bodily injury; not permit exposure workers’ injuries and illnesses. To do
this, the contractor would (1) define the and identifying the applicable standards Ensuring the workplace is free from
scope of work; (2) identify relevant should be an iterative process recognized workplace hazards that are
features of the work environment; (3) performed continually to monitor causing or are likely to cause death or
perform activity level hazard analyses to changes in workplace activities and serious bodily harm; providing workers
identify hazards; and (4) assess the risk processes and to provide feedback on adequate protection from the hazards
of injury and illness associated with program performance. Through this identified for the workplace; complying
those hazards. After identifying hazards process, a contractor would evaluate with the workplace safety and health
and assessing risks, the contractor significant changes or additions to requirements set forth in subpart C of
would identify appropriate hazard workplace activities to identify new the supplemental proposal that are
controls to protect workers from the hazards and to assess whether the applicable to the hazards identified for
identified hazards prior to initiating existing program effectively addressed the workplace; complying with any
work activities. Selection of hazard the scope and nature of the work and compliance order issued by the
controls would take into account all related hazards. This iterative process Secretary that is applicable to the
hazards to ensure the development of an would provide the contractor with the workplace; ensuring work is performed
integrated set of hazard controls. The information necessary to make changes in accordance with the worker health
contractor would prioritize and and improvements to all aspects of the and safety program for the covered
implement abatement actions for program as needed. On an annual basis, workplace; and reporting to DOE and
identified hazards according to risk, the contractor would either submit its investigate each occurrence, including
implement interim protective measures updated worker safety and health any near miss incident, that causes or
pending final abatement, and protect program to DOE for approval or, if no gives raise to a significant likelihood of
workers from imminent danger. changes are made to the program over death or serious bodily harm to a
Subpart B provides that a DOE the past year, a letter to that effect. worker.
contractor responsible for one or more Most contractors already have worker Section 851.1 of the supplemental
covered workplaces at a DOE site would safety and health programs in effect. proposal would limit its scope to
submit to DOE, for its approval, a DOE expects contractors to build on contractor activities at DOE sites.
written worker safety and health these existing programs and not to Federal employees would continue to be
program describing site-specific duplicate work already undertaken to covered by existing programs for federal
methods and provisions for complying meet existing contractual obligations. employees. Section 851.1 also would
with the program requirements. At sites For example, under paragraph 9 of the exclude contractor employees at DOE
with multiple contractors responsible DOE Order 440.1A, Contractor sites currently regulated by OSHA. DOE
for various workplaces at the site, the Requirements document, DOE believes this exclusion is appropriate
contractors would coordinate with each contractors have for almost a decade since there are no defense nuclear
other to ensure that the worker safety been required to: ‘‘Identify existing and facilities located at these sites and the
and health programs at the site are potential workplace hazards and contractors responsible for workplaces
integrated and consistent. Beginning evaluate risk of associated worker injury at these sites do not have Price-
one year after the publication of the and illness; analyze or review: (1) Anderson indemnification agreements
final rule, no work could proceed at a Designs for new facilities and in their contracts.
covered DOE workplace without a safety modifications to existing facilities and
and health program in place that had equipment; (2) operations and III. Procedural Review Requirements
been approved by the CSO or the DOE procedures; and (3) equipment, product, A. Review Under Executive Order 12866
site manager if approval authority were and services; assess worker exposure to
delegated by the CSO. To ensure chemical, physical, biological, or Today’s proposed regulatory action
consistency throughout program offices ergonomic hazards through appropriate has been determined to be a ‘‘significant
and across DOE, however, the CSO or workplace monitoring (including regulatory action’’ under Executive
site manager would consult with the personal, area, wipe, and bulk Order 12866, ‘‘Regulatory Planning and
Assistant Secretary for Environment, sampling); biological monitoring; and Review’’ (58 FR 51735, October 4, 1993),
Safety and Health in the evaluation and observation; evaluate workplaces and as amended by Executive Order 13258
approval of contractor programs. To activities (accomplished routinely by (67 FR 9385, February 26, 2002).
ensure timely evaluation and processing workers, supervisors, and managers and Accordingly, DOE submitted this notice
of each contractor-submitted program periodically by qualified worker of proposed rulemaking to the Office of
and to avoid work stoppage due to protection professionals); and report Information and Regulatory Affairs of
unnecessary delays, the CSO or the Site and investigate accidents, injuries, and the Office of Management and Budget,
Manager would be obligated to act on a illnesses and analyze related data for which has completed its review.
contractor-submitted program within 90 trends and lessons learned.’’ Similarly, B. Review Under Executive Order 12988
days of receipt of the program. DOE under the Integration of Environment,
requests comments as to how the Health and Safety into Work Planning With respect to the review of existing
efficiency of the approval process might and Execution clause, contractors are regulations and the promulgation of
be increased and, in particular, as to the required to: Identify and evaluate new regulations, Section 3(a) of
need for separate DOE approval of sub- workplace hazards, select an agreed- Executive Order 12988, ‘‘Civil Justice
elements of a worker safety and health upon set of safety and health standards Reform’’ (61 FR 4779, February 7, 1996)
program. to address those specific hazards, and imposes on Federal agencies the general
A contractor would maintain the implement administrative and duty to adhere to the following
worker safety and health program for a engineering controls to prevent or requirements: Eliminate drafting errors
workplace by evaluating and updating mitigate specific workplace hazards. and needless ambiguity, write
the worker safety and health program to Section 851.4 of the supplemental regulations to minimize litigation,
reflect changes in the work and proposal sets forth the proposed general provide a clear legal standard for
associated hazards. The process for duties of a contractor responsible for a affected conduct rather than a general
defining the scope of work, analyzing covered workplace. Specifically, the standard, and promote simplification
the hazards associated with the work, contractor would be responsible for: and burden reduction. Section 3(b)
requires Federal agencies to make every flexibility analysis for any regulation responsibilities for integrated safety
reasonable effort to ensure that a which a general notice of proposed management properly, the worker safety
regulation, among other things: Clearly rulemaking is required, unless the and health program required by the
specifies the preemptive effect, if any, agency certifies that the rule, if proposed regulations should require
adequately defines key terms, and promulgated, will not have a significant little if any new analysis or new
addresses other important issues economic impact on a substantial documents to the extent that existing
affecting the clarity and general number of small entities (5 U.S.C. analysis and documents are sufficient
draftsmanship under guidelines issued 605(b)). for purposes of the proposed
by the Attorney General. Section 3(c) of Today’s proposed regulation would regulations. Accordingly, no additional
Executive Order 12988 requires establish DOE’s requirements for worker Office of Management and Budget
Executive agencies to review regulations safety and health at DOE sites. The clearance is required by the Paperwork
in light of applicable standards in contractors who manage and operate Reduction Act of 1995 (44 U.S.C. 3501
Section 3(a) and Section 3(b) to DOE facilities would be principally et seq.) and the procedures
determine whether they are met or it is responsible for implementing the rule implementing that Act, 5 CFR 1320.1 et
unreasonable to meet one or more of requirements. DOE considered whether seq.
them. DOE has completed the required these contractors are ‘‘small
businesses,’’ as that term is defined in G. Review Under the National
review and determined that, to the Environmental Policy Act
extent permitted by law, the proposed the Regulatory Flexibility Act’s (5 U.S.C.
rule meets the relevant standards of 601(3)). The Regulatory Flexibility Act’s DOE currently implements its broad
Executive Order 12988. definition incorporates the definition of authority to regulate worker safety and
small business concerns in the Small health through internal DOE directives
C. Review Under Executive Order 13132 Business Act, which the Small Business incorporated into contracts to manage
Executive Order 13132 (64 FR 43255, Administration (SBA) has developed and operate DOE facilities, contract
August 10, 1999), imposes certain through size standards in 13 CFR part clauses and DOE regulations. This
requirements on agencies formulating 121. The DOE contractors subject to the proposed rule would implement the
and implementing policies or proposed rule exceed the SBA’s size statutory mandate to promulgate worker
regulations that preempt State law or standards for small businesses. In safety and health regulations for DOE
that have federalism implications. addition, DOE expects that any potential facilities that would provide a level of
Agencies are required to examine the economic impact of this proposed rule protection for workers at DOE facilities
constitutional and statutory authority on small businesses would be minimal that is substantially equivalent to the
supporting any action that would limit because DOE sites perform work under level of protection currently provided to
the policymaking discretion of the contracts to DOE or the prime contractor such workers and to provide procedures
States and carefully assess the necessity at the site. DOE contractors are to ensure compliance with the rule.
for such actions. reimbursed through their contracts with DOE anticipates that the contractor’s
Today’s regulatory action has been DOE for the costs of complying with work and safety programs required by
determined not to be a ‘‘policy that has DOE safety and health program this regulation would be based on
federalism implications,’’ that is, it does requirements. They would not, existing programs and that this rule
not have substantial direct effects on the therefore, be adversely impacted by the would generally not require the
states, on the relationship between the requirements in this proposed rule. For development of a new program. DOE
national government and the states, nor these reasons, DOE certifies that today’s has therefore concluded that
on the distribution of power and proposed rule, if promulgated, would promulgation of these regulations would
responsibility among the various levels not have a significant economic impact fall into the class of actions that would
of government under Executive Order on a substantial number of small not individually or cumulatively have a
13132 (64 FR 43255, August 10, 1999). entities, and therefore, no regulatory significant impact on the human
Accordingly, no ‘‘federalism summary flexibility analysis has been prepared. environment as set forth in the DOE
impact statement’’ was prepared or See 68 FR 7990 at III.1. and III.1.c. regulations implementing the National
subjected to review under the Executive (February 19, 2003). Environmental Policy Act of 1969 (42
Order by the Director of the Office of U.S.C. 4321 et seq.). Specifically, the
F. Review Under the Paperwork rule would be covered under the
Management and Budget. Reduction Act
categorical exclusion in paragraph A6 of
D. Review Under Executive Order 13175 The information collection provisions Appendix A to subpart D, 10 CFR part
Under Executive Order 13175 (65 FR of this proposed rule are not 1021, which applies to the
67249, November 6, 2000) on substantially different from those establishment of procedural
‘‘Consultation and Coordination with contained in DOE contracts with DOE rulemakings. Accordingly, neither an
Indian Tribal Governments,’’ DOE may prime contractors covered by this rule environmental assessment nor an
not issue a discretionary rule that has and were previously approved by the environmental impact statement is
tribal implications and imposes Office of Management and Budget required.
substantial direct compliance costs on (OMB) and assigned OMB Control No.
1910–5103. That approval covered H. Review Under the Unfunded
Indian tribal governments. DOE has
submission of a description of an Mandates Reform Act
determined that the proposed rule
would not have such effects and integrated safety management system Title II of the Unfunded Mandates
concluded that Executive Order 13175 required by the Integration of Reform Act of 1995 (Pub. L. 104–4)
does not apply to this proposed rule. Environment, Health and Safety into requires each Federal agency to prepare
Work Planning and Execution clause set a written assessment of the effects of
E. Review Under the Regulatory forth in the DOE procurement any Federal mandate in a proposed or
Flexibility Act regulations. 48 CFR 952.223–71 and final agency regulation that may result
The Regulatory Flexibility Act of 1980 970.5223–1, 62 FR 34842, 34859–60 in the expenditure by states, tribal, or
(5 U.S.C. 601 et seq.) requires that an (June 17, 1997). If contractors at a DOE local governments, on the aggregate, or
agency prepare an initial regulatory site fulfill their contractual by the private sector, of $100 million in
any one year. The Act also requires a guidelines, and has concluded that it is she may be reached. Persons requesting
Federal agency to develop an effective consistent with applicable policies in an opportunity to speak will be notified
process to permit timely input by those guidelines. as to the approximate time they will be
elected officials of state, tribal, or local speaking. Each presentation is limited to
IV. Public Comment Procedures
governments on a proposed significant 10 minutes. Persons making oral
intergovernmental mandate, and A. Written Comments presentations should bring three copies
requires an agency plan for giving notice Interested individuals are invited to of their statement to the hearing and
and opportunity to provide timely input participate in this proceeding by submit them at the registration desk.
to potentially affected small DOE reserves the right to select the
submitting data, views, or arguments.
governments before establishing any persons who will speak. In the event
Three copies of written comments
requirements that might significantly or that requests exceed the time allowed,
should be submitted to the address DOE also reserves the right to schedule
uniquely affect small governments. DOE
indicated in the ADDRESSES section of speakers’ presentations and to establish
has determined that the proposed rule
this notice. To help DOE review the the procedures for conducting the
published today does not contain any
submitted comments, commenters are hearing. A DOE official will be
Federal mandates affecting small
requested to reference the provision to designated to preside at each hearing,
governments, so these requirements do
which they refer where possible. which will not be judicial or
not apply.
All information provided by evidentiary. Only those persons
I. Review Under Executive Order 13211 commenters will be available for public conducting the hearing may ask
Executive Order 13211 (Actions inspection at the DOE Freedom of questions. Any further procedural rules
Concerning Regulations That Information Reading Room, Room 1E– needed to conduct the hearing properly
Significantly Affect Energy, Supply, 190, 1000 Independence Avenue, SW., will be announced by the DOE presiding
Distribution, or Use), 66 FR 28355 (May Washington, DC 20585 between the official.
22, 2001) requires preparation and hours of 8:30 a.m. and 4:30 p.m., A transcript of each hearing will be
submission to OMB of a Statement of Monday through Friday, except Federal made available to the public. DOE will
Energy Effects for significant regulatory Holidays. The docket file material for retain the record of the full hearing,
actions under Executive Order 12866 this rulemaking will be under EH–RM– including the transcript, and make it
that are likely to have a significant 04–WSHP. available on the Web site specially
adverse effect on the supply, DOE also intends to enter all written established for this proceeding. The
distribution, or use of energy. DOE has comments on a Web site specially Internet Web site is http://
determined that the proposed rule established for this proceeding. The www.eh.doe.gov/rulemakingwsh. If DOE
published today would not have a Internet Web site is http:// must cancel the hearing, it will make
significant adverse effect on the supply, www.eh.doe.gov/rulemakingwsh. every effort to give advance notice.
distribution, or use of energy and thus To assist DOE in making public
comments available on a website, List of Subjects in 10 CFR Part 851
the requirement to prepare a Statement
of Energy Effects does not apply. interested persons are to submit an Civil penalty, Hazardous substances,
electronic version of their written Incorporation by reference,
J. Review Under the Treasury and comments in accordance with the Occupational safety and health, Safety,
General Government Appropriations instructions in the DATES section of this Reporting and recordkeeping
Act, 1999 notice of proposed rulemaking. requirements.
Section 654 of the Treasury and If you submit information that you Issued in Washington, DC on January 14,
General Government Appropriations believe to be exempt by law from public 2005.
Act, 1999 (Pub. L. 105–277) requires disclosure, you should submit one John Spitaleri Shaw,
Federal agencies to issue a ‘‘Family complete copy, as well as two copies Assistant Secretary for Environment, Safety
Policymaking Assessment’’ for any from which the information claimed to and Health.
proposed rule that may affect family be exempt by law from public
For the reasons set forth in the
well-being. The proposed rule has no disclosure has been deleted. DOE is
preamble, title 10, chapter III of the
impact on the autonomy or integrity of responsible for the final determination
Code of Federal Regulations is proposed
the family as an institution. with regard to disclosure or
to be amended by adding part 851 to
Accordingly, DOE has concluded that it nondisclosure of the information and for
read as set forth below.
is not necessary to prepare a Family treating it accordingly under the
Policymaking Assessment. Freedom of Information Act section on PART 851—WORKER SAFETY AND
‘‘Handling Information of a Private HEALTH PROGRAM
K. Review Under the Treasury and Business, Foreign Government, or an
General Government Appropriations International Organization,’’ 10 CFR Subpart A—General Provisions
Act, 2001 1004.11.
The Treasury and General Sec.
Government Appropriations Act, 2001 B. Public Hearings 851.1 Scope and exclusions.
851.2 Purpose.
(44 U.S.C. 3516, note) provides for Public hearings will be held at the 851.3 Definitions.
agencies to review most dissemination time, date, and place indicated in the 851.4 General rule.
of information to the public under DATES and ADDRESSES sections of this 851.5 Compliance Order.
guidelines established by each agency notice of proposed rulemaking. Any 851.6 Interpretations.
pursuant to general guidelines issued by person who is interested in making an 851.7 Information and records.
OMB. OMB’s guidelines were published oral presentation should, by 4:30 p.m. 851.8 Compliance date.
at 67 FR 8452 (Feb. 22, 2002), and on the date specified, make a phone 851.9 Enforcement.
851.10 Workers rights.
DOE’s guidelines were published at 67 request to the number in the DATES
FR 62446 (Oct. 7, 2002). DOE has section of this notice of proposed Subpart B—Worker Safety and Health
reviewed today’s notice of proposed rulemaking. The person should provide Program
rulemaking under the OMB and DOE a daytime phone number where he or 851.100 Worker safety and health program.
851.101 Approval and maintenance of the assurance that workers are adequately which the recipient of the order must
worker safety and health program. protected from identified hazards; and comply.
Subpart C—Safety and Health (b) Procedures for investigating General Counsel means the General
Requirements whether a violation of a requirement has Counsel of DOE.
851.200 Worker safety and health occurred, for determining the nature Hazard control means a procedure,
requirements. and extent of any such violation, and for practice, means, method, operation,
851.201 Worker safety and health imposing an appropriate remedy. work process, or other control used to
standards. prevent, abate or mitigate workplace
851.202 Construction safety. § 851.3 Definitions.
hazards and associated risks.
851.203 Fire protection. Activity-level hazard analysis means Interpretation means a statement by
851.204 Explosives safety. an analysis of work-related hazards
851.205 Pressure retaining component
the General Counsel concerning the
relating to a specific job activity, task, meaning or effect of a requirement of
safety. operation or process.
851.206 Motor vehicle safety. this part which relates to a specific
AEA means the Atomic Energy Act of factual situation but may also be a
851.207 Biological safety.
851.208 Firearms safety. 1954, 42 U.S.C. 2011 et seq. ruling of general applicability if the
851.209 Industrial hygiene. Cognizant Secretarial Officer means General Counsel determines such action
851.210 Occupational medicine. the Assistant Secretary, Deputy to be appropriate.
Administrator, Program Office Director, NNSA means the National Nuclear
Subpart D—Exemption Relief
or equivalent DOE official who has Security Administration.
851.300 Exemptions. primary line management responsibility
851.301 Exemption criteria. Preliminary notice of violation means
for a contractor.
851.302 Terms and conditions. a document that sets forth the
Compliance Order means an Order
preliminary conclusions that a
Subpart E—Enforcement Process issued by the Secretary to a contractor
contractor has violated or is continuing
851.400 Investigations and inspections. that mandates a remedy, work stoppage,
to violate a requirement of this part and
851.401 Settlement. or other action to address a situation
includes:
851.402 Preliminary notice of violation. that violates, potentially violates, or
851.403 Final notice of violation. (1) A statement specifying the
otherwise is inconsistent with a
851.404 Administrative appeal. requirement of this part to which the
requirement of this part.
851.405 Direction to NNSA contractors. violation relates;
Consent order means any written
Appendix A To Part 851—General Statement document, signed by the Director and a (2) A concise statement of the basis
of Enforcement Policy contractor, containing stipulations or for alleging the violation;
Authority: 42 U.S.C. 2201(i)(3), (p); 42 conclusions of fact or law and a remedy (3) Any remedy, including the amount
U.S.C. 2282c; 42 U.S.C. 5801 et seq.; 42 acceptable to both DOE and the of any proposed civil penalty; and
U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq. contractor. (4) A statement explaining the
Contractor means any entity under reasoning behind any proposed remedy.
Subpart A—General Provisions contract with DOE, or a subcontractor to Remedy means any action (including
such an entity, and includes any but not limited to, the assessment of
§ 851.1 Scope and exclusions. civil penalties, the reduction of fees or
(a) The worker safety and health affiliated entity such as a parent
organization. other payments under a contract, the
requirements in this part govern the requirement of specific actions, or the
conduct of contractor activities at DOE Director means a DOE Official to
whom the Secretary has assigned the modification, suspension or recission of
sites, with the exception of sites listed a contract) necessary or appropriate to
in paragraph (b) of this section. authority to investigate the nature and
extent of compliance with the rectify, prevent, or penalize a violation
(b) This part does not apply to a DOE of a requirement of this part, including
site: requirements of this part.
DOE means the United States a compliance order issued by the
(1) Regulated by the Occupational Secretary pursuant to this part.
Safety and Health Administration Department of Energy, including the
National Nuclear Security Secretary means the Secretary of
(OSHA) on [date on which final rule is Energy.
issued]; or Administration.
DOE site means a DOE-owned or Site Manager means the DOE official
(2) Operated under the authority of
leased area or location where activities who has primary responsibility for
the Director, Naval Nuclear Propulsion,
and operations are performed at one or overall management of a DOE site.
pursuant to Executive Order 12344, as
more facilities or locations by a Worker means a person who performs
set forth in Public Law 98–525, 42
contractor. work for or on behalf of DOE, including
U.S.C. 7158 note.
(c) This part does not apply to Final notice of violation means a an independent contractor, a DOE
radiological hazards to the extent document that determines a contractor contractor or subcontractor employee, or
regulated by 10 CFR parts 820, 830 or has violated or is continuing to violate any other person who performs work at
835. a requirement of this part and includes: a covered workplace.
(1) A statement specifying the Workplace hazard means a physical,
§ 851.2 Purpose. requirement of this part to which the chemical, biological, or radiological
This part establishes the: violation relates; hazard with any potential to cause
(a) Safety and health requirements (2) A concise statement of the basis illness, injury, or death to a person.
that a contractor responsible for a for the determination; Workplace safety and health
covered workplace must implement (3) Any remedy, including the amount programmatic requirements means a set
through a worker safety and health of any civil penalty; and of requirements that addresses related
program that provides its workers with (4) A statement explaining the workplace hazards in a comprehensive
a safe and healthful workplace in which reasoning behind any remedy. manner, including requirements on
workplace hazards are abated, Final Order means an order of DOE construction safety, fire protection,
controlled or otherwise mitigated in a that represents final agency action and, firearms safety, explosives safety,
manner that provides reasonable if appropriate, imposes a remedy with industrial hygiene, occupational
medicine, pressure safety motor vehicle issuing any interpretation concerning a (c) DOE may not penalize a contractor
safety, and biosurety. requirement in this part. under both paragraphs (a) and (b) of this
Workplace safety and health (b) Any written or oral response to section for the same violation of a
requirement means a workplace safety any written or oral question which is requirement of this part.
and health standard or programmatic not provided pursuant to paragraph (a) (d) For contractors listed in
requirement. of this section does not constitute an subsection d. of section 234A of the
Workplace safety and health standard interpretation and does not provide any AEA, 42 U.S.C. 2282a(d), the total
means a standard which addresses a basis for action inconsistent with a amount of civil penalties under
workplace hazard by establishing limits, requirement of this part. paragraph (a) and contract penalties
requiring conditions, or prescribing the under paragraph (b) of this section may
adoption or use of one or more § 851.7 Information and records.
not exceed the total amount of fees paid
practices, means, methods, operations, (a) A contractor must maintain
by DOE to the contractor in that fiscal
or processes. complete and accurate records as
year.
necessary to substantiate compliance
§ 851.4 General rule. with the requirements of this part, (e) DOE may not penalize a contractor
The contractor responsible for a including but not limited to records on under both sections 234A and 234C of
covered workplace must: inventory information, hazard the AEA for the same violation.
(a) Ensure the workplace is free from assessment, exposure measurements, § 851.10 Workers rights.
recognized workplace hazards that are exposure controls, and worker injuries
causing or are likely to cause death or and illnesses. (a) Workers at a covered workplace
serious bodily harm; (b) A contractor may neither conceal have the right, without reprisal, to
(b) Provide workers adequate nor destroy any information concerning participate in activities described in this
protection from the hazards identified non-compliance or potential non- section on official time;
for the workplace; compliance with the requirements of (b) Workers at a covered workplace
(c) Comply with the workplace safety this part. also have the right, without reprisal to:
and health requirements set forth in (c) Any information pertaining to a
subpart C of this part that are applicable (1) Have access to:
requirement in this part provided to (i) DOE safety and health
to the hazards identified for the DOE by any contractor or maintained by
workplace; publications;
any contractor for inspection by DOE
(d) Comply with any compliance shall be complete and accurate in all (ii) The worker safety and health
order issued by the Secretary pursuant material respects. program for the covered workplace;
to § 851.5 that is applicable to the (d) Nothing in this part shall relieve (iii) The standards, controls, and
workplace; any contractor from safeguarding procedures applicable to the covered
(e) Ensure work is performed in workplace;
classified, confidential, and controlled
accordance with the worker health and
information, including Restricted Data (iv) The safety and health poster that
safety program for the covered
or national security information, in informs the worker of relevant rights
workplace; and
(f) Report to DOE and investigate each accordance with the applicable and responsibilities.
occurrence, including any near miss provisions of federal statutes and the (2) Be notified when monitoring
incident that causes or gives raise to a rules, regulations, and orders of any results indicate the worker was
significant likelihood of death or serious federal agency. overexposed to hazardous materials;
bodily harm to a worker. § 851.8 Compliance date. (3) Observe monitoring or measuring
Contractors must achieve compliance of hazardous agents and have the results
§ 851.5 Compliance Order.
with the requirements of this part no of his or her own exposure monitoring;
(a) The Secretary may issue to any
later than [Insert date 1 year from (4) Accompany DOE personnel during
contractor a Compliance Order that:
(1) Identifies a situation that violates, effective date of the rule], unless an an inspection of the workplace;
potentially violates, or otherwise is exemption granted pursuant to subpart (5) Request and receive results of
inconsistent with a requirement of this D of this part provides otherwise. inspections and accident investigations;
part; § 851.9 Enforcement. (6) Express concerns related to worker
(2) Mandates a remedy, work safety and health;
(a) A contractor that has entered into
stoppage, or other action; and, (7) Decline to perform an assigned
(3) States the reasons for the remedy, an agreement of indemnification under
section 170d. of the AEA(or any task because of a reasonable belief that,
work stoppage, or other action. under the circumstances, the task poses
(b) A Compliance Order is a final subcontractor or supplier thereto) and
that violates (or whose employee an imminent risk of death or serious
order that is effective immediately bodily harm to the worker coupled with
unless the Order specifies a different violates) any requirement of this part is
subject to a civil penalty of up to a reasonable belief that there is
effective date. insufficient time to seek effective
(c) Within 15 calendar days of the $70,000 for each such violation. If any
violation under this subsection is a redress through the normal hazard
issuance of a Compliance Order, the
continuing violation, each day of the reporting and abatement procedures;
recipient of the Order may request the
violation shall constitute a separate and
Secretary to rescind or modify the
Order. A request does not stay the violation for the purpose of computing (8) Stop work when the worker
effectiveness of a Compliance Order the civil penalty. discovers employee exposures to
unless the Secretary issues an order to (b) A contractor that violates any imminently dangerous conditions or
that effect. requirement of this part is subject to a other serious hazards; provided that any
reduction in fees or other payments stop work authority must be exercised
§ 851.6 Interpretations. under a contract with DOE, pursuant to in a justifiable and responsible manner
(a) The Office of the General Counsel the contract’s Conditional Payment of in accordance with established
is responsible for formulating and Fee clause. procedures.
Subpart B—Worker Safety and Health (iii) Protection of workers from (1) If a contractor is responsible for
Program imminently dangerous conditions; more than one covered workplace at a
(iv) Selection of hazard controls based DOE site, the contractor must establish
§ 851.100 Worker safety and health on the following hierarchy: and maintain a single worker safety and
program. (A) Elimination of the hazard; health program for the workplaces at the
(a) A contractor responsible for one or (B) Engineered controls; site for which the contractor is
more workplaces at a DOE site must (C) Work practices and administrative responsible.
establish and maintain a worker safety controls; and
and health program that ensures: (D) Personal protective equipment; (2) If more than one contractor is
(1) Workplaces are free from and responsible for covered workplaces at a
recognized workplace hazards that are (v) Emphasis on reducing hazards to DOE site, each contractor must:
causing or are likely to cause death or workers when purchasing equipment (i) Establish and maintain a worker
serious bodily harm; and and services. safety and health program for the
(2) Workers are adequately protected (3) Provide for the effective workplaces for which the contractor is
from identified hazards. implementation of the worker safety and
(b) A worker safety and health responsible; and
health requirements of subpart C of this
program must: part in a manner tailored to: (ii) Coordinate with the other
(1) Include provisions for: (i) Reflect activities and hazards contractors responsible for covered
(i) Defining the scope of the work to associated with a particular work workplaces at the site to ensure that the
be performed prior to its initiation; environment; worker safety and health programs at
(ii) Identifying relevant features of the the site are integrated and consistent.
(ii) Take into account special
work environment, including designs
circumstances at a covered workplace (b) The Cognizant Secretarial Officer
and features of facilities, equipment,
that is, or is expected to be, permanently or, if approval authority is delegated by
operations and procedures important to
closed and that is expected to be the Cognizant Secretarial Officer, the
a safe and healthful workplace prior to
demolished, or title to which is Site Manager must review and approve
the initiation of work activities;
(iii) Identifying and evaluating general expected to be transferred to another the contractor’s worker safety and
workplace hazards, specific job hazards, entity for reuse on behalf of an entity health program, in consultation with the
and potential hazards that may arise other than DOE; and Assistant Secretary for Environment,
(iii) Achieve national security
from unforeseeable conditions; Safety and Health, within 90 days after
(iv) Undertaking routine activity-level missions of the Department of Energy in
receipt from the contractor. Beginning
hazard analyses to: an efficient and timely manner.
(4) Identify the hazard controls to be January 26, 2006, no work may be
(A) Evaluate designs of new facilities performed at a covered workplace
and modifications to existing facilities used to provide adequate protection
from identified hazards at the activity unless the Cognizant Secretarial Officer
and equipment for potential workplace or the Site Manager has approved the
hazards; and level in a tailored manner for a
particular work environment or the worker safety and health program for
(B) Evaluate operations and
process for selecting and identifying the workplace.
procedures to identify workplace
hazards; such controls in the future prior to the (c) A contractor must maintain its
(v) Considering all hazards, including initiation of work activities; worker safety and health program by:
radiological hazards, in order to ensure (5) Identify situations for which the
(1) Evaluating and updating the
development of an integrated set of contractor has concluded an exemption
worker safety and health program at
hazard controls to protect workers; pursuant to subpart D is needed and the
process for identifying other such least annually to reflect when
(vi) Assessing the risk of associated
situations in the future; significant changes or additions in the
injury and illness to workers from the
(6) Provide for feedback on the worker activities and hazards are made, or a
identified hazards;
(vii) Assessing worker exposure to safety and health program and for its change in contractors occurs;
chemical, physical, biological, continuous improvement; (2) Annually submitting to the
radiological, or safety workplace (7) Ensure that all workers are Cognizant Secretarial Officer or, if
hazards through appropriate workplace provided with information and training approval authority is delegated by the
monitoring; needed to perform their duties in a safe Cognizant Secretarial Officer, the DOE
(viii) Documenting assessments for and healthful manner; Site Manager either an updated worker
chemical, physical, biological, and (8) Ensure the worker safety and safety and health program for approval
safety workplace hazards using health program is consistent and or a letter stating that no changes are
recognized exposure assessment and integrated with other safety activities at necessary in the currently approved
testing methodologies and use of the workplace; worker safety and health program;
accredited and certified laboratories; (9) Contain provisions to ensure
(ix) Recording observations, testing compliance by subcontractors; and (3) Performing an internal audit of its
and monitoring results; and (10) Document the process of worker safety and health program no
(x) Reviewing safety and health developing and maintaining the worker less frequently than every 36 months
information. safety and health program at a level and transmitting the results of the audit
(2) Provide for the prevention, commensurate with the complexity and to the DOE Site Manager, the Cognizant
abatement and mitigation of identified hazards associated with the workplace. Secretarial Officer, the Assistant
workplace hazards through: Secretary for Environment, Safety and
(i) Prioritization and implementation § 851.101 Approval and maintenance of
Health, and the Director; and
of actions according to the potential the worker safety and health program.
hazard to workers; (a) By July 25, 2005, contractors must (4) Incorporating in the worker safety
(ii) Implementation of interim submit for DOE approval a written and health program any changes,
protective measures pending final worker safety and health program that conditions, or workplace safety and
action; meets the requirements of § 851.100. health standards directed by DOE.
Subpart C—Safety and Health to impose additional requirements on a (3) 29 CFR part 1917, Marine
Requirements contractor. Terminals;
§ 851.200 Worker safety and health § 851.201 Worker safety and health (4) 29 CFR part 1918, Safety and
requirements. standards. Health Regulations for Longshoring;
(a) The following regulations of the (5) 29 CFR part 1926, Safety and
(a) A contractor responsible for a
Occupational Safety and Health Health Regulations for Construction;
covered workplace must comply with
Administration (OSHA) in effect as of and
the worker safety and health
[Insert Effective Date of Final Rule]:
requirements set forth in this subpart as (1) 29 CFR part 1910, Occupational (6) 29 CFR part 1928, Occupational
applicable to the workplace hazards Safety and Health Standards, except 29 Safety and Health Standards for
identified for facilities and activities CFR part 1910.109; Agriculture.
under its control. (2) 29 CFR part 1915, Occupational (b) The National Fire Protection
(b) Nothing in this subpart shall be Safety and Health Standards for Association (NFPA) codes and
construed to limit the authority of DOE Shipyard Employment; standards listed in Table 1 below.
TABLE 1.—NATIONAL FIRE PROTECTION ASSOCIATION CODES AND STANDARDS

NFPA No. Title Edition
1 .................................. Uniform Fire Code ......................................................................................................................................... 2003

10 ................................ Standard for Portable Fire Extinguishers ...................................................................................................... 2002
11A .............................. Standard for Medium- and High-Expansion Foam Systems ......................................................................... 1999
11 ................................ Standard for Low-, Medium-, and High-Expansion Foam ............................................................................. 2002
12 ................................ Standard on Carbon Dioxide Extinguishing Systems .................................................................................... 2000
12A .............................. Standard on Halon 1301 Fire Extinguishing Systems ................................................................................... 1997
13 ................................ Standard for the Installation of Sprinkler Systems ........................................................................................ 2002
14 ................................ Standard for the Installation of Standpipe and Hose Systems ..................................................................... 2003
15 ................................ Standard for Water Spray Fixed Systems for Fire Protection ....................................................................... 2001
16 ................................ Standard for the Installation of Foam-Water Sprinkler Foam-Water Spray Systems ................................... 2003
17A .............................. Standard for Wet Chemical Extinguishing Systems ...................................................................................... 2002
17 ................................ Standard for Dry Chemical Extinguishing Systems ....................................................................................... 2002
20 ................................ Standard for the Installation of Stationary Pumps for Fire Protection .......................................................... 2003
22 ................................ Standard for Water Tanks for Private Fire Protection ................................................................................... 2003
24 ................................ Standard for the Installation of Private Fire Service Mains and Their Appurtenances ................................. 2002
25 ................................ Standard for Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems ................... 2002
30A .............................. Codes for Motor Fuel Dispensing Facilities and Repair Garages ................................................................. 2003
30 ................................ Flammable and Combustible Liquids Code ................................................................................................... 2003
31 ................................ Standard for the Installation of Oil-Burning Equipment ................................................................................. 2001
33 ................................ Standard for Spray Application Using Flammable or Combustible Materials ............................................... 2003
37 ................................ Standard for the Installation and Use of Stationary Combustion Engines and Gas ..................................... 2002
45 ................................ Standard on Fire Protection for Laboratories Using Chemicals .................................................................... 2000
50A .............................. Standard for Gaseous Hydrogen Systems at Consumer sites ..................................................................... 1999
50B .............................. Standard for Liquefied Hydrogen Systems at Consumer Sites .................................................................... 1999
50 ................................ Standard for Bulk Oxygen Systems at Consumer Sites ............................................................................... 2001
51 ................................ Standard for the Design and Installation of Oxygen Fuel Gas Systems for Welding, Cutting, and Allied 2002
Processes.
51B .............................. Standard for Fire Prevention During Welding, Cutting, and Other Hot Work ............................................... 2003
52 ................................ Compressed Natural Gas (CNG) Vehicular Fuel Systems Code ................................................................. 2002
54 ................................ ANSI Z223.1, 2002 National Fuel Gas Code ................................................................................................ 2002
55 ................................ Standard for Storage, Use and Handling of Compressed Gases and Cryogenic Fluids in Portable and 2003
Stationary Containers, Cylinders and Tanks.
57 ................................ Liquefied Natural Gas (LNG) Vehicular Fuel Systems Codes ...................................................................... 2002
58 ................................ Liquefied Petroleum Gas Code ..................................................................................................................... 2001
59A .............................. Standard for the Production, Storage, and Handling of Liquefied Natural Gas (LNG) ................................. 2001
59 ................................ Utility LP-Gas Plant Code .............................................................................................................................. 2001
69 ................................ Standard on Explosion Prevention Systems ................................................................................................. 2002
70 ................................ National Electrical Code ................................................................................................................................ 2002
70E .............................. Standard for Electrical Safety Requirements for Employee Workplaces ...................................................... 2002
72 ................................ National Fire Alarm Code .............................................................................................................................. 2002
73 ................................ Electrical Inspection Code for Existing Dwellings ......................................................................................... 2000
75 ................................ Standard for the Protection of Information Technology Equipment .............................................................. 2003
80 ................................ Standard for Fire Doors and Fire Windows ................................................................................................... 1999
82 ................................ Standard on incinerators and Waste and Linen Handling Systems and Equipment .................................... 1999
85 ................................ Boiler and Combustion Systems Hazards Code ........................................................................................... 2001
86 ................................ Standard for Ovens and Furnaces ................................................................................................................ 2003
88A .............................. Standard for Parking Structures .................................................................................................................... 2002
90A .............................. Standard for the Installation of Air-Conditioning and Ventilating Systems ................................................... 2002
90B .............................. Standard for the Installation of Warm Air Heating and Air-Conditioning Systems ....................................... 2002
91 ................................ Standard for Exhaust Systems for Air Conveying of Vapors, Gases, Mists, and Noncombustible Particu- 1999
late Solids.
96 ................................ Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations ........................... 2001
97 ................................ Standard glossary of terms Relating to Chimneys, Vents, and Heat-Producing Appliances ....................... 2003
99 ................................ Standard for Health Care Facilities ............................................................................................................... 2002
99C .............................. Standard on Gas and Vacuum Systems ....................................................................................................... 2002
TABLE 1.—NATIONAL FIRE PROTECTION ASSOCIATION CODES AND STANDARDS—Continued

101B ............................ Code for Means of Egress for Buildings and Structures ............................................................................... 2002
101 .............................. Life Safety Code ............................................................................................................................................ 2003
102 .............................. Standard for Grandstands, Folding and Telescopic Seating, Tents, and Membrane Structures ................. 1995
105 .............................. Standard for the Installation of Smoke Door Assemblies ............................................................................. 2003
110 .............................. Standard for Emergency and Standby Power Systems ................................................................................ 2002
111 .............................. Standard on Stored Electrical Energy Emergency and Standby Power Plants ............................................ 2001
115 .............................. Standard for Laser Fire Protection ................................................................................................................ 2003
204 .............................. Standard for Smoke and Heat Venting ......................................................................................................... 2002
211 .............................. Standard for Chimneys, Fireplaces, Vents, and Solid Fuel-Burning Appliances .......................................... 2003
214 .............................. Standard on Water-Cooling Towers .............................................................................................................. 2000
220 .............................. Standard on Types of Building Construction ................................................................................................. 1999
221 .............................. Standard for Fire Walls and Fire Barrier Walls ............................................................................................. 2000
230 .............................. Standard for the Fire Protection of Storage .................................................................................................. 2003
232 .............................. Standard for the Protection of records .......................................................................................................... 2000
241 .............................. Standard for Safeguarding Construction, Alteration, and Demolition Operations ......................................... 2000
307 .............................. Standard for the Construction and Fire Protection of Marine Terminals, Piers, and Wharves .................... 2000
318 .............................. Standard for the Protection of Semiconductors Fabrication Facilities .......................................................... 2002
326 .............................. Standard for the Safeguarding of Tanks and Containers for Entry, Cleaning, or Repair ............................. 1999
385 .............................. Standard for Tank Vehicles for Flammable and Combustible Liquids .......................................................... 2000
407 .............................. Standard for Aircraft Fuel Servicing .............................................................................................................. 2001
408 .............................. Standard for Aircraft Hand Portable Fire Extinguishers ................................................................................ 1999
409 .............................. Standard on Aircraft Hangers ........................................................................................................................ 2001
415 .............................. Standard on Airport terminal Building, Fueling Ramp Drainage, and Loading Walkways ........................... 2002
418 .............................. Standard for Heliports .................................................................................................................................... 2001
430 .............................. Code for the Storage of Liquid and Solid Oxidizers ...................................................................................... 2000
432 .............................. Code for the Storage of Organic Peroxide Formulations .............................................................................. 2002
434 .............................. Code for the Storage of Pesticides ............................................................................................................... 2002
472 .............................. Standard for Professional Competence of Responders to Hazardous Materials Incidents .......................... 2002
473 .............................. Standard for Competencies for EMS Personnel Responding to Hazardous Materials Incidents ................. 2002
484 .............................. Standard for Combustible Metals, Metal Powders, and Metal Dusts ........................................................... 2002
490 .............................. Code for the Storage of Ammonium Nitrate .................................................................................................. 2002
495 .............................. Explosive Materials Code .............................................................................................................................. 2001
496 .............................. Standard for Purged and Pressurized Enclosures for Electrical Equipment ................................................ 2003
498 .............................. Standard for Safe Havens and Interchange Lots for Vehicles Transporting Explosives .............................. 2001
502 .............................. Standard for Road Tunnels, Bridges, and Other Limited Access Highways ................................................ 2001
505 .............................. Fire Safety Standard for Powered Industrial Trucks Including Type Designations, Areas of Use, Conver- 2002
sions, Maintenance, and Operations.
520 .............................. Standard on Subterranean Spaces ............................................................................................................... 1999
560 .............................. Standard for the Storage, Handling, and Use of Ethylene Oxide for Sterilization and Fumigation .............. 2002
600 .............................. Standard on Industrial Fire Brigades ............................................................................................................. 2000
601 .............................. Standard for Security Services in Fire Loss Prevention ............................................................................... 2000
654 .............................. Standard for the Prevention of Fire and Dust Explosions from the Manufacturing, Processing, and Han- 2000
dling of Combustible Particulate Solids.
655 .............................. Standard for Prevention of Sulfur Fires and Explosions ............................................................................... 2001
664 .............................. Standard for the Prevention of Fires and Explosions in Wood Processing and Woodworking Facilities .... 2002
704 .............................. Standard System for the Identification of the Hazards of Materials for Emergency Response ................... 2001
750 .............................. Standard on Water Mist Fire Protection Systems ......................................................................................... 2003
780 .............................. Standard for the Installation of Lighting Protection Systems ........................................................................ 2000
801 .............................. Standard for Fire Protection for Facilities Handling Radioactive Materials ................................................... 2003
820 .............................. Standard for Fire Protection in Wastewater Treatment and Collective Facilities ......................................... 2003
853 .............................. Standard for the Installation of Stationary Fuel Cell Power System ............................................................. 2003
909 .............................. Code for the Protection of Cultural Resources ............................................................................................. 2001
914 .............................. Code for Fire Protection of Historic Structures ............................................................................................. 2001
1000 ............................ Standard for Fire Service Professional Qualifications Accreditation and Certification Systems .................. 2000
1001 ............................ Standard for Fire Fighter Professional Qualifications .................................................................................... 2002
1002 ............................ Standard on Fire Apparatus Drivers/Operator Professional Qualifications ................................................... 2003
1003 ............................ Standard for Airport Fire Fighter Professional Qualifications ........................................................................ 2000
1006 ............................ Standard for Rescue Technician Professional Qualifications ....................................................................... 2003
1021 ............................ Standard for Fire Officer Professional Qualifications .................................................................................... 2003
1041 ............................ Standard for Fire Service Instructor Professional Qualifications ................................................................... 2002
1051 ............................ Standard for Wildland Fire Fighter Professional Qualifications ..................................................................... 2002
1061 ............................ Standard for Professional Qualifications for Public Safety Telecommunicator ............................................. 2002
1071 ............................ Standard for Emergency Vehicle Technician Professional Qualifications .................................................... 2000
1141 ............................ Standard for Fire Protection in Planned Building Groups ............................................................................. 2003
1142 ............................ Standard on Water Supplies for Suburban and Rural Fire Fighting ............................................................. 2001
1143 ............................ Standard for Wildland Fire Management ....................................................................................................... 2003
1144 ............................ Standard for Protection of Life and Property from Wildfire ........................................................................... 2002
1221 ............................ Standard for the Installation, Maintenance, and Use of Emergency Services Communications Systems .. 2002
1403 ............................ Standard on Live Fire Training Evolutions .................................................................................................... 2002
1404 ............................ Standard for Fire Service Respiratory Protection Training ........................................................................... 2002
1410 ............................ Standard on Training for Initial Emergency Scene Operations ..................................................................... 2000
1451 ............................ Standard for a Fire Service Vehicle Operations Training Program .............................................................. 2002
TABLE 1.—NATIONAL FIRE PROTECTION ASSOCIATION CODES AND STANDARDS—Continued

1500 ............................ Standard on Fire Department Occupational Safety and Health Program ..................................................... 2002
1521 ............................ Standard for Fire Department Safety Officer ................................................................................................. 2002
1561 ............................ Standard on Emergency Services Incident Management System ................................................................ 2002
1581 ............................ Standard on Fire Department Infection Control Program ............................................................................. 2000
1582 ............................ Standard on Comprehensive Occupational Medical Program for Fire Departments .................................... 2003
1583 ............................ Standard on Health-Related Fitness Programs for Fire Fighters .................................................................. 2000
1670 ............................ Standard on Operations and Training for Technical Rescue Incidents ........................................................ 1999
1710 ............................ Standard for the Organization and Deployment of Fire Suppression Operations, Emergency Medical Op- 2001
erations, and Special Operations to the Public by Career Fire Departments.
1851 ............................ Standard on Selection, Care and Maintenance of Structural Fire Fighting Protective Ensembles .............. 2001
1852 ............................ Standard on Selection, Care, and Maintenance of Open-Circuit Self-Contained Breathing Apparatus 2002
(SCBA).
1901 ............................ Standard for Automotive Fire Apparatus ....................................................................................................... 2003
1906 ............................ Standard for Wildland Fire Apparatus ........................................................................................................... 2001
1911 ............................ Standard for Service Test of Fire pump Systems on Fire Apparatus ........................................................... 2002
1912 ............................ Standard for Fire Apparatus Refurbishing ..................................................................................................... 2001
1914 ............................ Standard for Testing Fire Department Aerial Devices .................................................................................. 2002
1915 ............................ Standard for Fire Apparatus Preventive Maintenance Program ................................................................... 2000
1925 ............................ Standard on Marine Fire-Fighting Vessels .................................................................................................... 1998
1931 ............................ Standard on design of and Design Verification Tests for the Fire Department Ground Ladders ................ 1999
1932 ............................ Standard on Use, Maintenance, and Service Testing of Fire Department Ground Ladders ........................ 1999
1936 ............................ Standard on Powered Rescue Tool Systems ............................................................................................... 1999
1951 ............................ Standard on Protective Ensemble for USAR Operations .............................................................................. 2001
1961 ............................ Standard on Fire Hose .................................................................................................................................. 2002
1962 ............................ Standard for the Inspection, Care, and Use of Fire Hose, Couplings, and Nozzles .................................... 2003
1963 ............................ Standard for Fire Hose Connections ............................................................................................................. 2003
1964 ............................ Standard for Spray Nozzles ........................................................................................................................... 2003
1965 ............................ Standard for Hose Appliances ....................................................................................................................... 2003
1971 ............................ Standard on Protective Ensembles for Structural Fire Fighting .................................................................... 2000
1975 ............................ Standard on Station/Work Uniforms for Fire and Emergency Services ........................................................ 1999
1976 ............................ Standard on Protective Ensemble for Proximity Fire Fighting ...................................................................... 2000
1977 ............................ Standard on Protective Clothing and Equipment for Wildland Fire Fighting ................................................ 1998
1981 ............................ Standard on Open-Circuit Self-Contained Breathing Apparatus for Fire and Emergency Services ............ 2002
1982 ............................ Standard on Personal Alert Safety Systems (PASS) .................................................................................... 1998
1983 ............................ Standard on Fire Service Life Safety Rope and System Components ......................................................... 2001
1989 ............................ Standard on Breathing Air Quality for Fire and Emergency Services Respiratory Protection ..................... 2003
1991 ............................ Standard on Vapor-Protective Ensembles for Hazardous Materials Emergencies ...................................... 2000
1992 ............................ Standard on Liquid Splash-Protective Ensembles and Clothing for Hazardous Materials Emergencies ..... 2000
1994 ............................ Standard on Protective Ensembles for Chemical/Biological Terrorism Incidents ......................................... 2001
1999 ............................ Standard on Protective Clothing for Emergency Medical Operations ........................................................... 2003
2001 ............................ Standard on Clean Agent Fire Extinguishing Systems ................................................................................. 2000
2112 ............................ Standard on Flame-Resistant Garments for Protection of Industrial Personnel Against Flash Fire ............ 2001
2113 ............................ Standard on Selection, Care, Use, and Maintenance of Flame-Resistant Garments for Protection of In- 2001
dustrial Personnel Against Flash Fire.
5000 ............................ Building Construction and Safety Code ......................................................................................................... 2003
(c) The codes listed in Tables 2 Standards Institute (ANSI), the Laboratories (UL) as applicable to
through 5 published by the American American Petroleum Institute (API), the pressure retaining components
Society of Mechanical Engineers American Water Works Association including pressure vessels, piping,
(ASME), the American National (AWWA), and Underwriters valves, fittings, flanges and gaskets.
TABLE 2.—ASME BOILER AND PRESSURE VESSEL CODE (2004)

Section Title
I ........................................................................................................... Power Boilers.

II .......................................................................................................... Materials.
III ......................................................................................................... Rules for Construction of Nuclear Facility Components.
IV ......................................................................................................... Heating Boilers.
V .......................................................................................................... Non Destructive Examination.
VI ......................................................................................................... Recommended Rules for Care and Operation of Heating Boilers.
VII ........................................................................................................ Recommended Guidelines for the Care of Power Boilers.
VIII ....................................................................................................... Pressure Vessels.
IX ......................................................................................................... Welding and Brazing Qualifications.
X .......................................................................................................... Fiber-Reinforced Plastic Pressure Vessels.
XI ......................................................................................................... Rules for In-Service Inspection of Nuclear Power Plant Components.
TABLE 3.—ANSI/ASME PIPING CODES

Section Title Edition
B31.1 ........................... Power Piping .................................................................................................................................................. 2001

B31.2 ........................... Fuel Gas Piping ............................................................................................................................................. 1968
B31.3 ........................... Process Piping ............................................................................................................................................... 2002
B31.4 ........................... Pipeline Transportation Systems, Liquid Hydrocarbon, Other Liquids .......................................................... 2002
B31.5 ........................... Refrigeration Piping and Hat Transfer Components ..................................................................................... 2001
B31.8 ........................... Gas Transmission and Distribution Piping Systems ..................................................................................... 2004
B31.9 ........................... Building Services Piping ................................................................................................................................ 1996
B31.11 ......................... Slurry Transportation Piping Systems ........................................................................................................... 2003
TABLE 4.—ASME CODES FOR VALVES, FITTINGS, FLANGES AND GASKETS

B16.1 ........................... Cast Iron Pipe Flanges and Fittings .............................................................................................................. 1998
B16.3 ........................... Malleable Iron Threaded Fittings ................................................................................................................... 1998
B16.4 ........................... Gray Iron Threaded Fittings ........................................................................................................................... 1998
B16.5 ........................... Pipe Flanges and Flanged Fittings ................................................................................................................ 1996
B16.9 ........................... Factory-Made Wrought Buttwelding Fitting ................................................................................................... 2001
B16.10 ......................... Face-to-Face and End-to-End Dimensions of Valves ................................................................................... 2000
B16.11 ......................... Forged Fittings Socket-Welding and Threaded ............................................................................................. 2001
B16.12 ......................... Cast Iron Threaded Drainage Fittings ........................................................................................................... 1998
B16.14 ......................... Ferrous Pipe Plugs, Bushings and Locknuts with Pipe Threads .................................................................. 1991
B16.15 ......................... Cast Iron Bronze Threaded Fittings .............................................................................................................. 1985
B16.18 ......................... Cast Copper Alloy Solder Joint Pressure Fittings ......................................................................................... 2001
B16.20 ......................... Metallic Gasket for Pipe Flanges: Ring-Joint Spiral-Wound and Jacketed .................................................. 1998
B16.21 ......................... Nonmetallic Flat Gaskets for Pipe Flanges ................................................................................................... 1992
B16.22 ......................... Wrought Copper and Copper Alloy Solder Joint Pressure Fittings ............................................................... 2001
B16.23 ......................... Cast Copper Alloy Solder Joint Drainage Fittings ......................................................................................... 2002
B16.25 ......................... Buttwelding Ends ........................................................................................................................................... 1997
B16.26 ......................... Cast Copper Alloy Fittings for Flared Copper Tubes .................................................................................... 1998
B16.28 ......................... Wrought Steel Buttwelding Short Radius Elbows and Returns .................................................................... 1994
B16.29 ......................... Wrought Copper and Wrought Copper Alloy Solder Joint Drainage Fittings ................................................ 2001
B16.33 ......................... Manually Operated Metallic Gas Valves for Use in Gas Piping Systems up to 125psi ............................... 2001
B16.34 ......................... Valves-Flanged, Threaded and Welding End ................................................................................................ 1996
B16.36 ......................... Orifice Flanges ............................................................................................................................................... 1996
B16.38 ......................... Large Metallic Valves for Gas Distribution (manually operated NPS 21⁄2 to 12, 125 psig) .......................... 1985
B16.39 ......................... Malleable Iron Threaded Pipe Unions ........................................................................................................... 2003
B16.40 ......................... Manually Operated Thermoplastic Gas Shutoffs and Valves in Gas Distribution Systems ......................... 2002
B16.42 ......................... Ductile Iron Pipe Flanges and Fittings: Classes 150 and 300 ...................................................................... 2001
B16.44 ......................... Manually Operated Metallic Gas Valves for Use in Above Ground Piping Systems up to 5psi .................. 1968
B16.45 ......................... Cast Iron Fittings for Solvent Drainage Systems .......................................................................................... 2002
B16.47 ......................... Large diameter Steel Flanges: NPS26 through NPS60 ................................................................................ 1999
B16.48 ......................... Steel Line Blanks ........................................................................................................................................... 2002
B16.49 ......................... Factory-Made Wrought Steel Buttwelding Induction Bends .......................................................................... 2001
B16.50 ......................... Wrought Copper and Copper Alloy Braze-Joint Pressure Fittings ................................................................ 1992
TABLE 5.—CODES AND STANDARDS FOR ADDITIONAL PRESSURE RETAINING COMPONENTS

Compressors:
ASME B19.1 ........ Safety Standard for Air Compressor Systems .............................................................................................. 1995
ASME B19.3 ........ Safety Standard for Compressor for Process Industries ............................................................................... 1991
Pumps:
API–610 ............... Centrifugal Pump for General Refinery Service, American Petroleum Institute ........................................... 2003
Tanks:
ASME B96.1 ........ Welder Aluminum Alloy Storage Tanks ......................................................................................................... 1991
API–620 ............... Design and Construction of Large Welded Low Pressure Storage .............................................................. 2002
API–650 ............... Atmospheric Welded Steel Tanks for Oil Storage, American Petroleum Institute ........................................ 1996
AWWA–D100 ....... Welded Steel Tanks for Water Storage, American Water Works Association ............................................. 1996
API–2000 ............. Venting Atmospheric and Low Pressure Storage Tanks .............................................................................. 1998
API–2510 ............. Design and Construction of Liquid Petroleum Gas (LPG) Installations ........................................................ 2001
UL–58 ................... Steel Underground Tanks for Flammable and Combustible Liquids, Underwriters Valve Laboratories ...... 1998
UL–142 ................. Steel Aboveground Tanks for Flammable and Combustible Liquids, Underwriters Laboratories ................ 2003
API–653 ............... Tank Inspection, Repair, and Reconstruction, American Petroleum Institute ............................................... 2001
Pressure Vessel:
API–660 ............... Shell and Tube Heat Exchange to General Refinery Service, American Petroleum Institute ...................... 2001
(d) Exposure limits and technical project scope, the contractor must plans and specifications for all new
requirements of the American National immediately notify affected workers, facilities and for significant
Standards Institute (ANSI) contained in post appropriate warning signs, modifications of existing facilities,
the following standards: implement needed interim control including a written review by a
(1) Z136.1, Safe Use of Lasers (2000); measures, and notify DOE of the action qualified fire protection engineer of
(2) Z88.2, Practices for Respiratory taken. The contractor or the designated plans, specifications, procedures, and
Protection (2004); and representative must stop work in the acceptance tests.
(3) Z49.1, Safety in Welding, Cutting affected area until protective or (5) Fire hazards analyses (FHAs),
and Allied Processes, Sections 4.3 and mitigative measures are established. developed using a graded approach, for
E4.3 (1999). (b) With respect to a construction all nuclear facilities, significant new
(e) American Conference of project above the monetary threshold facilities, and facilities that represent
Governmental Industrial Hygienists established by the Davis-Bacon Act (40 unique or significant fire safety risks.
(ACGIH) standard, Threshold Limit U.S.C. 276a), a contractor must prepare (6) Access to a qualified and trained
Values for Chemical Substances and a written construction project safety and fire protection staff, including a fire
Physical Agents and Biological health plan to implement the protection engineers, technicians, and
Exposure Indices, in effect as of [Insert requirements of paragraph (a) of this fire-fighting personnel.
Effective Date of The Final Rule]. This section and obtain approval of the plan (7) A current Baseline Needs
standard shall be used in lieu of OSHA by DOE prior to commencement of any Assessment that establishes the
Permissible Exposure Limits in the work covered by the plan. In the plan, minimum required capabilities of site
event that the ACGIH Threshold Limit the contractor shall designate the fire-fighting forces needed to assure
Values are lower (more protective) than individual(s) responsible for on-site worker safety and health. This includes
the comparable OSHA limit. implementation of the plan, specify minimum staffing, apparatus, facilities,
qualifications for those individuals, and equipment, training, fire pre-plans, off-
§ 851.202 Construction safety.
provide a list of those project operations site assistance requirements, and
(a) A contractor responsible for a to which the health and safety plan procedures. Information from this
workplace with a construction project applies. assessment must be incorporated into
must:
(1) Prepare an activity-level hazard § 851.203 Fire protection. the site Emergency Plan. Such
analysis prior to commencement of assessments shall be updated as needed
(a) A contractor responsible for a
affected work. Such an analysis shall: but at least every three years.
workplace must establish and
(i) Identify foreseeable hazards and implement a comprehensive fire (8) Written pre-fire strategies, plans,
planned protective and mitigative protection and response program. This and standard operating procedures for
measures; program must contain, at a minimum, special hazards to enhance the
(ii) Provide drawings and/or other the following elements: effectiveness of any site fire-fighting
documentation of protective measures (1) A current policy statement that forces.
that a Professional Engineer or other describes specific management (9) A comprehensive, documented fire
competent person is required to prepare; commitments to support a level of fire protection self-assessment program,
and protection and response capability which includes all aspects (program and
(iii) Define the qualifications of sufficient to minimize the potential for facility) of the fire protection program.
competent persons required for losses from fire and related hazards Assessments must be performed on a
workplace inspections. consistent with the best class of regular basis, but at least every three
(2) Inform workers of foreseeable protected property in private industry. years.
hazards and the protective and (2) Comprehensive, written fire (10) A program to identify, prioritize,
mitigative measures described within protection criteria that incorporate the and monitor the status of fire protection-
the activity-level hazard analysis prior requirements of this section, the related appraisal findings/
to beginning work on the affected provisions of the standards delineated recommendations until final resolution
construction operation. in § 851.201, and additional site-specific is achieved.
(3) Require workers to utilize aspects of the fire protection program. (11) Provision for interim
protective or mitigative measures as a Site-specific aspects include the compensatory measures to minimize fire
condition of employment as well as organization, training, and risk if final resolution under paragraph
acknowledge being informed of the responsibilities of the fire protection (a)(10) will be significantly delayed.
hazards and protective and mitigative staff, administrative aspects of the fire (12) A process for reviewing and
measures. protection program, and requirements recommending approval of fire safety
(4) During periods of active for the design, installation, operability, code and standard equivalencies to the
construction, have a designated inspection, maintenance, and testing of Site Manager.
representative, who has received fire protection systems. (13) Fire safety performance
specific training and is knowledgeable (3) Written fire safety procedures measures, approved by the Site
about the hazards of construction, on governing the use and storage of Manager, that provide a basis for
site at all times to conduct and combustible, flammable, radioactive, evaluating the success or failure of all
document daily inspections of the and hazardous materials so as to major elements of the site fire protection
workplace, and to identify and correct minimize the risk from fire. Such and response program.
hazards and instances of noncompliance procedures must also exist for fire (b) The contractor must review in-
with project safety and health protection system impairments and for depth, and if appropriate, perform or
requirements. Workers must be activities such as smoking, hot work, update any analysis or assessment
instructed to report to the designated safe operation of process equipment, required under paragraphs (a)(5), (a)(7),
representative unforeseen hazards not and other fire prevention measures that and (a)(9) of this section at least once
previously identified or evaluated. If contribute to the decrease in fire risk. every three years. With respect to non-
immediate corrective action is not (4) A requirement to incorporate the nuclear facilities, the Site Manager may
possible or the hazard falls outside of DOE fire protection program in the approve a longer period for updating the
document via a written memorandum to (c) The contractor must require use of Activities may be performed in Class IV
the contractor. personal protective equipment in order bays if only insensitive high explosives
(c) A contractor responsible for the to protect personnel from the specific (IHE), IHE subassemblies, or IHE
design of a new DOE facility or major hazards of the operations. weapons are present; however,
modification to an existing DOE facility (d) Pursuant to an approved training criticality considerations must govern
must ensure that the design provides: and certification program, the contractor the quantity of plutonium allowed.
(1) A reliable water supply of must properly train personnel before (ii) Bays for Cased Explosives
adequate capacity for fire suppression. they are assigned to explosive Plutonium Activities. When handling or
(2) Noncombustible or fire-resistive operations or to operate any explosive processing cased high explosive
construction, where appropriate, transport vehicle. Each contractor must components that contain plutonium, the
including complete fire-rated barriers, have an approved training and enclosing structure must be designed as
that is commensurate with the fire certification program. a Class II (moderate accident potential)
hazard to isolate hazardous occupancies (e) Quantity-distance criteria must explosives bay. Storage must conform to
and to minimize fire spread. account for: Class III (low accident potential)
(3) Automatic fire extinguishing (1) The types and severity of hazards requirements. The plutonium quantity
systems throughout all nuclear and each explosive material present; must be limited to 55 lbs (25 kg) per
other significant facilities and in all (2) The construction and orientation bay. Activities may be performed in
areas subject to significant life safety of facilities to which the criteria are Class IV bays if only IHE, IHE
hazards. applied; and
(4) A means to summon the fire subassemblies, or IHE weapons are
(3) The degree of protection desired present; however, criticality
department in the event of a fire, such for personnel and facilities adjacent to
as a fire alarm signaling system. considerations govern the quantity of
the explosives operations. plutonium allowed.
(5) A means to notify and evacuate (f) The contractor must base the level
building occupants in the event of a fire, (f) Fire protection. A comprehensive
of protection required for an explosives
such as a fire detection or fire alarm operational safety plan shall be
activity on the hazard class (accident
system and illuminated, protected developed to control personnel and
potential) for the explosive activity
egress paths. facility design. Automatic fire
involved, as follows:
(6) Physical access and appropriate suppression systems must be installed
(1) Bays for Class IV (negligible
equipment to facilitate effective in all buildings containing high
probability of accidental initiation)
intervention by the fire department, explosives and plutonium, with the
activities must provide protection from
such as an interior standpipe system(s) exception of storage magazines. The fire
fire hazard effects.
in multi-story or large facilities with (2) Bays for Class III (low accident protection system design must ensure
complex configurations. potential) activities must provide that the system in any bay remains
(7) Fire and related hazards that are protection from explosion propagation operable should detonation occur in any
unique to DOE and are not addressed by from bay-to-bay within buildings and other bay. Firebreaks shall be
industry codes and standards shall be between buildings located at intra-line established around all explosives
protected by isolation, segregation, or or magazine distance. handling facilities.
use of special fire control systems, such (3) Bays for Class II (moderate (g) Explosive facility siting and design
as inert gas or explosion suppression, as accident potential) activities must criteria references. Blast-resistant design
determined by the FHA. comply with the requirements of Class for personnel and facility protection
III bays, and in addition provide must be based on the TNT equivalency
§ 851.204 Explosives safety.
protection to prevent fatalities and of the maximum quantity of explosives
A contractor responsible for a and propellants, plus 20 per cent. The
workplace involving the use of severe personnel injuries in all occupied
areas other than the bay of occurrence. technical basis for location, engineering,
explosive materials (except materials design, and operation (under normal
used only for routine construction, (4) Bays for Class I (high accident
potential) activities must comply with and potential design basis accident
demolition, and tunnel blasting) must conditions) of buildings must comply
establish and implement a the requirements of Class II bays, and in
addition provide protection to prevent with approved guidelines to achieve the
comprehensive explosives safety most conservative design for the
program. This program must contain, at serious injuries to all personnel,
including personnel performing the protection of workers.
a minimum, the following elements: (h) Electrical storms and lightning
(a) The Contractor must establish activity, persons in other occupied
areas, and transients. protection. The contractor must provide
plans and procedures to achieve:
(1) Protection of explosives from (5) Bays for joint explosives- protection to personnel working in
abnormal stimuli and adverse plutonium activities must also comply explosive areas, and personnel near
environments; with the following: those areas, from the consequences of an
(2) Proper hazard identification, (i) Bays for Uncased Explosives explosive incident resulting from a
analysis, controls and communication; Plutonium Activities. Where it is lightning strike by developing and
(3) Safe work environment, including necessary to store, handle, or process implementing a Lightning Detection and
proper personnel protection, safe uncased explosives components and Warning Plan that includes as a
equipment, processing, testing, and plutonium in the same bay, the minimum:
material handling, and enclosing structure and its ventilation, (1) Evaluation of lightning risk;
(4) Effective measures for security and electrical, fire protection, and utility (2) Lightning protection system
emergency control. systems must be designed to assure that, installation, employing Mast, Catenary,
(b) The contractor must maintain if all the explosives present should Integral Air Terminal, surge suppressor,
limits and controls on the maximum detonate, radiation exposures are within bonding, Faraday cage, or partial
number of personnel permitted in the applicable limits for hypothesized Faraday cage;
workplace, commensurate with accidental releases. The documented (3) Techniques and procedures for
personnel protection and work safety analysis governs the quantity of initial installation of each approved
efficiency. plutonium allowed in such a bay. lightning protection system;
(4) Techniques and procedures for (4) Requirements for motor vehicle particular emphasis on biological select
retrofitting structures to a partial maintenance and inspection; agents.
Faraday cage type of lightning (5) Uniform traffic and pedestrian (f) Establishes an immunization
protection, if a decision is made to control devices and road signs; policy for personnel working with
retrofit the structure; and (6) On-site speed limits and other biological etiologic agents based on the
(5) Administrative control such as traffic rules; DOE facility evaluation of risk and
stopping of work and evacuation of (7) Awareness campaigns and benefit of immunization.
personnel in the event of a lightning incentive programs to encourage safe
warning. driving; and § 851.208 Firearms safety.
(8) Enforcement provisions. (a) A contractor responsible for a
§ 851.205 Pressure retaining component workplace must establish firearms safety
safety. § 851.207 Biological safety. policies and procedures for security
(a) A contractor responsible for a A contractor responsible for a operations and training to ensure proper
workplace must establish safety policies workplace must establish and accident prevention controls are in
and procedures to ensure that pressure implement a biological safety program place.
systems are designed, fabricated, tested, that: (1) Written procedures must address
inspected, maintained, repaired, and (a) Establishes an Institutional firearms safety, engineering and
operated by trained and qualified Biosafety Committee (IBC) or administrative controls, as well as
personnel in accordance with applicable equivalent. The IBC shall: personal protective equipment
and sound engineering principles. (1) Review any work with biological requirements. For security operations
(b) If national consensus codes and etiologic agents for compliance with conducted in accordance with policy on
standards in § 851.201 are determined appropriate CDC, NIH, WHO, and other counter terrorism, use of Department of
not to be applicable following an international, Federal, State, and local Defense military type masks for
independent peer review process, the guidelines and assess the containment respiratory protection by security
contractor must implement DOE- level, facilities, procedures, practices, personnel is acceptable.
approved measures (if allowed by the and training and expertise of personnel; (2) As a minimum, procedures must
governing provisions of the code or and be established for:
consensus standard) based upon a (2) Review for compliance the site (i) Storage, handling, cleaning,
reasonable interpretation of the intent of security, safeguards, and emergency inventory, and maintenance of firearms
existing standards. If the applicable management plans and procedures, as and associated ammunition;
provisions of the code or consensus related to work with biological etiologic (ii) Activities such as loading,
standard do not permit clarification or agents. unloading, and exchanging firearms.
interpretation, the contractor must (b) Maintains a readily retrievable These procedures must address use of
provide equivalent protection and inventory and status of biological bullet containment devices and those
ensure safety equal to or superior to the etiologic agents, and provides to the techniques to be used when no bullet
intent of the closest applicable code or responsible field and area office, containment device is available;
standard following an independent peer through the laboratory IBC (or its (iii) Use and storage of pyrotechnics,
review process, subject to DOE equivalent), an annual status report explosives, and/or explosive projectiles;
approval. describing the status and inventory of (iv) Handling misfires, duds, and
biological etiologic and program. unauthorized discharges;
§ 851.206 Motor vehicle safety. (c) Provides for submission to the (v) Live fire training, qualification,
(a) A contractor responsible for a head of the appropriate DOE field and evaluation activities;
workplace must implement a motor element, for review and concurrence (vi) Training and exercises using
vehicle safety program to protect the before transmittal to the Center for engagement simulation systems;
safety and health of all drivers and Disease Control (CDC), each Laboratory (vii) Medical response at firearms
passengers in Government-owned or Registration/Select Agent Program training facilities; and
-leased motor vehicles and powered registration application package (viii) Use of firing ranges by personnel
industrial equipment (i.e., fork trucks, requesting registration of a laboratory other than DOE or DOE contractor
tractors, platform lift trucks, and other facility at Biosafety Level 2, 3, or 4, for protective forces personnel.
similar specialized equipment powered the purpose of transferring, receiving, or (b) A contractor must ensure that
by an electric motor or an internal handling biological select agents. personnel responsible for the direction
combustion engine). (d) Provides for submission to the and operation of the firearms safety
(b) The contractor must tailor the head of the appropriate DOE field program are professionally qualified and
motor vehicle safety program to the element a copy of each CDC Form EA– have sufficient time and authority to
individual DOE site or facility, based on 101, Transfer of Select Agents, upon implement the procedures under this
an analysis of the needs of that initial submission of the Form EA–101 section.
particular site or facility. to a vendor or other supplier requesting (c) A contractor must ensure that
(c) The motor vehicle safety program or ordering a biological select agent for firearms instructors and armorers have
must include: transfer, receipt, and handling in the been certified by the Safeguards and
(1) Minimum licensing requirements registered facility. Submit the Security National Training Center to
(including appropriate testing and completed copy of the Form EA–101, conduct the level of activity provided.
medical qualification) for personnel documenting final disposition and/or Personnel must not be allowed to
operating motor vehicles and powered destruction of the select agent, within conduct activities for which they have
industrial equipment; 10 days of completion of the Form EA– not been certified.
(2) Requirements for the use of seat 101. (d) A contractor must conduct formal
belts and provision of other safety (e) Confirms that the site safeguards appraisals assessing implementation of
devices. and security plans and emergency procedures, personnel responsibilities,
(3) Training for specialty vehicle management programs address and duty assignments to ensure overall
operators; biological etiologic agents, with policy objectives and performance
criteria are being met by qualified, (b) The industrial hygiene program medical placement or surveillance
responsible personnel. must include the following elements: evaluations;
(e) A contractor must implement (1) Initial or baseline surveys of all (4) Notification of employee job
procedures related to firearms training, work areas or operations to identify and transfers;
live fire range safety, qualification, and evaluate potential worker health risks; (5) Notification when an employee
evaluation activities, including (2) Coordination with planning and has been absent because of an injury or
procedures requiring that: design personnel to anticipate and illness for more than 5 consecutive
(1) Personnel must successfully control health hazards that proposed workdays (or an equivalent time period
complete initial firearms safety training facilities and operations would for those individuals on an alternative
before being issued any firearms. introduce; work schedule);
Authorization to remain in armed status (3) Coordination with cognizant (6) Information on, and the
will continue only if the employee occupational medical, environmental, opportunity to participate in, worker
demonstrates the technical and practical health physics, and work planning health protection team meetings and
knowledge of firearms safety semi- professionals; committees;
annually; (4) Policies and procedures to mitigate (7) Access to the workplace for
(2) Authorized armed personnel must the risk from identified and potential evaluation of job conditions and issues
demonstrate through documented occupational carcinogens; and relating to workers’ health;
limited scope performance tests both (5) Professionally and technically (e) The SOMD, or designated OMP
technical and practical knowledge of qualified industrial hygienists to staff, must:
firearms handling and safety on a semi- manage and implement the industrial (1) Plan and implement the OMP;
annual basis; hygiene program. (2) Prepare, review and update
(3) All firearms training lesson plans annually a formal written plan detailing
must incorporate safety for all aspects of § 851.210 Occupational medicine. the methods and procedures
firearms training task performance (a) A contractor responsible for a implementing the OMP and
standards. The lesson plans must follow covered workplace must establish and documenting the contractor’s
the standards set forth by the Safeguards maintain an Occupational Medical compliance with this subsection; and
and Security Central Training Program (OMP) to provide (3) Participate in worker protection
Academy’s standard training programs; comprehensive occupational health teams to build and maintain necessary
(4) Firearms safety briefings must services to contractor employees. At partnership among workers, managers,
immediately precede training, sites with operations performed by more and safety and health professionals in
qualifications, and evaluation activities than one contractor, several contractors establishing and maintaining a safe and
involving live fire and/or engagement may agree to use services provided healthful workplace.
simulation systems; under a single contractor’s OMP. A (f) A record, containing any medical,
(5) A safety analysis approved by DOE contractor having no employees who clinical, health history, exposure
line management must be developed for work on the DOE site for 30 or more history, and demographic data collected
the facilities and operation of each live days in a year and who has no workers under the OMP, must be developed and
fire range prior to implementation of enrolled in a medical surveillance maintained for each employee for whom
any new training, qualification, or program, regardless or length of medical services are provided.
evaluation activity. Results of these employment, is not required to have an Beginning January 2007, all OMP
analyses must be incorporated into OMP. medical records should be kept in an
procedures, lesson plans, exercise plans, (b) The OMP must be directed by a electronic format.
and limited scope performance tests; site occupational medical director (1) Employee medical, psychological,
(6) Firing range safety procedures (SOMD) who must be a graduate of a and assistance records must be kept
must be conspicuously posted at all school of medicine or osteopathy and confidential, protected from
primary range facilities; licensed for the practice of medicine in unauthorized access, and stored under
(7) Live fire ranges, approved by the the state in which the site is located. conditions that ensure their long-term
Site Manager, must be properly sited to (c) Occupational medical physicians, preservation. Access to these records
protect personnel on the range, as well occupational health nurses, physician’s shall be provided in accordance with
as personnel and property not assistants, nurse practitioners, DOE Privacy Act implementing
associated with the range. psychologists, and other occupational regulations.
(f) Contractors must develop a safety health personnel on the OMP staff must (2) The SOMD must determine the
or risk analysis for all facilities or areas be licensed, registered, or certified as content of the worker health
in which firearms will be introduced in required by Federal or State law where evaluations, which must be conducted
accordance with the local protection employed. under the direction of a licensed
strategy. Such analyses must be (d) A contractor must promote physician, in accordance with current
approved by DOE line management. communication and coordination sound and acceptable medical practices
(g) Contractors must ensure that the between all environmental, safety, and and all pertinent statutory and
transportation, handling, placarding, health groups and specifically provide regulatory requirements, such as the
and storage of munitions conform to the the SOMD with the following: Americans with Disabilities Act.
applicable requirements of DOE policy (1) Current information about actual (3) Each SOMD must maintain an up-
directives. or potential work-related site hazards to-date list of all evaluations and tests
(chemical, physical, biological, or that are offered, submit the list annually
§ 851.209 Industrial hygiene. ergonomic); through the cognizant Field Element to
(a) A contractor responsible for a (2) Employee job-task and hazard- the Office of Environment, Safety and
covered workplace must implement a analysis information, including Health, and make this list openly
comprehensive and effective industrial essential job functions; available to all site workers.
hygiene program to reduce the risk of (3) Actual or potential work-site (4) The purpose and nature of these
work-related disease or illness. exposures of each employee prior to medical tests and their results must be
clearly communicated verbally and in (1) Contractor-sponsored or (1) Be consistent with law;
writing to each worker offered testing; contractor-supported employee (2) Adequately protect the health and
(5) The communication must be assistance programs; safety of workers;
documented in the medical chart by the (2) Contractor-sponsored or (3) Be consistent with a safe and
signature of the occupational health contractor-supported alcohol and other healthful workplace free from
examiner and the worker. substance abuse rehabilitation recognized hazards that are causing or
(6) The following health evaluations programs; and are likely to cause death or serious
must be conducted when determined (3) Contractor-sponsored or bodily injury;
necessary by the SOMD for the purpose contractor-supported wellness (4) Not permit exposure limits that are
of providing initial and continuing programs. less protective than the limits required
assessment of employee fitness for duty: (4) The SOMD must review the by this part or not otherwise diminish
(i) At the time of employment medical aspects of immunization the level of protection afforded workers;
entrance or job transfer, a Medical programs, blood-borne pathogens and
Placement examination will evaluate programs, and bio-hazardous waste (5) Involve one of the ‘‘special
the individual’s general health and programs to evaluate their conformance circumstances’’ as set forth in paragraph
physical and emotional capacity to to applicable guidelines. (b) of this section.
perform work to establish a baseline (i)(1) The SOMD must review and (b) With respect to a particular work
record of physical condition and assure develop procedures consistent with the environment, ‘‘special circumstances’’
fitness for duty. medical portion of the site emergency means a situation in which:
(ii) Periodic hazard-based medical and disaster preparedness plans. (1) Application of the requirement
monitoring or qualification-based fitness (2) The SOMD and staff must integrate leads to a conflict with another
for duty evaluations required by the medical portion with nearby applicable statutory, regulatory or
regulations and standards, or as community emergency and disaster contractual requirement; or
recommended by the SOMD, will be plans. (2) Application of the requirement
provided on the frequency required. would not serve its underlying purpose;
(iii) Diagnostic examinations will Subpart D—Exemption Relief (3) Application of the requirement is
evaluate employee’s injuries and not necessary to achieve its underlying
illnesses to determine work-relatedness, § 851.300 Exemptions. purpose and results in resource impacts
the degree of disability, and if needed, (a) The Cognizant Secretarial Officer that are not justified by the safety
referral for definitive care. who is primarily responsible for the improvements; or
(iv) After a work-related absence or an contractor activity to which a worker (4) Application of the requirement
absence of 5 or more consecutive safety and health requirement applies would result in a situation significantly
workdays (or an equivalent time period may grant a temporary or permanent different than that contemplated when
for those individuals on an alternative exemption from that requirement. the requirement was adopted, or
work schedule), a return to work (b) The Cognizant Secretarial Officer: significantly different than that
evaluation will determine the (1) Must provide a copy of the encountered by others similarly
individual’s physical and emotional exemption request and supporting situated; or
capacity to perform work and return to documentation to the Assistant (5) The exemption would result in
duty. Secretary for Environment, Safety and benefit to worker safety and health that
(v) At the time of separation from Health for a thirty day review; compensates for any detriment that may
employment, the individual’s general (2) May not grant the exemption prior result from the grant of the exemption;
health will be evaluated to establish a to the conclusion of the thirty day or
record of physical condition. review period unless the Assistant (6) Circumstances exist that would
(g) The SOMD must place an Secretary for Environment, Safety and justify temporary relief from application
individual under medical restrictions Health comments earlier; and of the requirement while taking good
when health evaluations so indicate that (3) If the Cognizant Secretarial Officer faith action to achieve compliance; or
the worker should not perform certain is not part of NNSA, may not grant the (7) There is present any other material
job tasks. exemption if the Assistant Secretary for circumstance not considered when the
(1) The SOMD or designee must notify Environment, Safety and Health non- requirement was adopted for which it
the worker and contractor management concurs during the thirty day review would be in the public interest to grant
when employee work restrictions are period. an exemption; or
imposed or removed. (c) An exemption must set forth in (8) An exemption would contribute to
(2) The OMP must monitor ill and writing: tailoring the requirements of this part to
injured workers to facilitate their (1) The requirement for which the reflect the hazards and facilities
rehabilitation and safe return to work exemption is granted; associated with a particular work
and to minimize lost time and its (2) The basis for the determination environment; or
associated costs. that the criteria in § 851.301 have been (9) The facility is to be permanently
(3) Occupational medical physicians met; closed and demolished, or title is
and medical staff must, on a timely (3) The workplaces to which and the expected to be transferred to another
basis, communicate results of health circumstances under which the entity for reuse; or
trend evaluations to management and exemption applies; and (10) An exemption would contribute
site worker health protection (4) Any terms and conditions to substantially to achieving a national
professionals responsible for mitigating which the exemption is subject. security mission of the Department of
worksite hazards. (d) The authority to grant or deny Energy in an efficient and timely
(h) The SOMD must review and exemptions may not be delegated. manner.
approve the medical and behavioral
aspects of employee counseling and § 851.301 Exemption criteria. § 851.302 Terms and conditions.
health promotional programs, including (a) An exemption to a worker safety An exemption may contain terms and
the following types: and health requirement must: conditions including provisions that:
(a) Limit its duration; contractor may submit any document, (4) A consent order must set forth the
(b) Require alternative action; statement of facts, or memorandum of relevant facts which form the basis for
(c) Require partial compliance; or law for the purpose of explaining the the order and what remedy, if any, is
(d) Establish a schedule for full or contractor’s position or furnish imposed.
partial compliance. information which the contractor (5) A consent order shall constitute a
considers relevant to a matter or activity final order.
Subpart E—Enforcement Process under investigation or inspection.
§ 851.402 Preliminary notice of violation.
§ 851.400 Investigations and inspections. (h) The Director may convene an
informal conference to discuss any (a) Based on a determination by the
(a) The Director may initiate and Director that there is a reasonable basis
conduct investigations and inspections situation that might be a violation of a
requirement of this part, its significance to believe a contractor has violated or is
relating to the scope, nature and extent continuing to violate a requirement of
of compliance by a contractor with the and cause, any correction taken or not
taken by the contractor, any mitigating this part, the Director may issue a
requirements of this part and take such preliminary notice of violation to the
action as the Director deems necessary or aggravating circumstances, and any
other useful information. A conference contractor.
and appropriate to the conduct of the (b) The Director must send a
investigation or inspection. is not normally open to the public and
DOE does not make a transcript of the preliminary notice of violation by
(b) Contractors must fully cooperate certified mail, return receipt requested.
with the Director during all phases of conference. The Director may compel a
contractor to attend the conference. (c) A preliminary notice of violation
the enforcement process and provide must indicate:
complete and accurate records and (i) If facts disclosed by an
investigation or inspection indicate that (1) The date, facts, and nature of each
documentation as requested by the act or omission upon which each
Director during investigation or further action is unnecessary or
unwarranted, the Director may close the alleged violation is based;
inspection activities. Contractors who (2) The particular requirement
attempt to falsify records or investigation without prejudice to
further investigation or inspection at involved in each alleged violation;
documentation or otherwise mislead the (3) The proposed remedy for each
Director during the enforcement process any time that circumstances so warrant.
alleged violation, including the amount
will be subject to full and unmitigated (j) The Director may issue
of any civil penalty; and
enforcement of this part, and such cases enforcement letters that communicate
(4) The right of the contractor to
may be referred to the Department of DOE’s expectations with respect to any
submit a written reply to the Director
Justice by the Director for potential aspect of the requirements of this part,
within 30 calendar days of receipt of the
criminal investigation. including identification and reporting of
preliminary notice of violation.
(c) Any person may request the issues, corrective actions, and
(d) A reply to a preliminary notice of
Director to initiate an investigation or implementation of the contractor’s
violation must contain a statement of all
inspection pursuant to paragraph (a) of safety and health program; provided
relevant facts pertaining to an alleged
this section. A request for an that an enforcement letter may not
violation.
investigation or inspection sets forth the create the basis for any legally (1) The reply must:
subject matter or activity to be enforceable requirement pursuant to (i) State any facts, explanations and
investigated or inspected as fully as this part. arguments which support a denial of the
possible and includes supporting (k) The Director may sign, issue and alleged violation;
documentation and information. serve subpoenas. (ii) Demonstrate any extenuating
(d) The Director must inform any circumstances or other reason why a
§ 851.401 Settlement.
contractor that is the subject of an proposed remedy should not be
investigation or inspection in writing at (a) DOE encourages settlement of a
imposed or should be mitigated;
the initiation of the investigation or proceeding under this subpart at any
(iii) Discuss the relevant authorities
inspection of the general purpose of the time if the settlement is consistent with
which support the position asserted,
investigation or inspection. However, no this part. The Director and a contractor
including rulings, regulations,
prior notice of an inspection need be may confer at any time concerning
interpretations, and previous decisions
provided to a contractor. settlement. A settlement conference is
issued by DOE; and
(e) DOE shall not disclose information not open to the public and DOE does
(iv) Furnish full and complete
or documents that are obtained during not make a transcript of the conference.
answers to any questions set forth in the
any investigation or inspection unless (b) Notwithstanding any other preliminary notice.
the Director directs or authorizes the provision of this part, the Director may (2) Copies of all relevant documents
public disclosure of the investigation. resolve any issues in an outstanding must be submitted with the reply.
Upon such authorization, the proceeding under this subpart with a (e) If a contractor fails to submit a
information or documents are a matter consent order. written reply within 30 calendar days of
of public record and disclosure is not (1) The Director and the contractor, or receipt of a preliminary notice of
precluded by the Freedom of a duly authorized representative, must violation:
Information Act, 5 U.S.C. 552 and part sign the consent order and indicate (1) The contractor relinquishes any
1004 of this title. agreement to the terms contained right to appeal any matter in the
(f) A request for confidential therein. preliminary notice; and
treatment of information for purposes of (2) A contractor is not required to (2) The preliminary notice, including
the Freedom of Information Act does admit in a consent order that a any proposed remedies therein,
not prevent disclosure by the Director if requirement of this part has been constitutes a final order.
the Director determines disclosure to be violated.
in the public interest and otherwise (3) DOE is not required to make a § 851.403 Final notice of violation.
permitted or required by law. finding in a consent order that a (a) If a contractor submits a written
(g) During the course of an contractor has violated a requirement of reply within 30 calendar days of receipt
investigation or inspection, any this part. of a preliminary notice of violation, the
Director must review the submitted Appendix A to Part 851.—General for the prompt identification and correction
reply and make a final determination Statement of Enforcement Policy of problems. DOE will give due consideration
whether the contractor violated or is to such initiatives and activities in exercising
I. Introduction its enforcement discretion.
continuing to violate a requirement of (d) DOE may modify or remit civil
(a) This policy statement sets forth the
this part. penalties in a manner consistent with the
general framework through which the U.S.
(b) Based on a determination by the Department of Energy (DOE) will seek to mitigation and adjustment factors set forth in
Director that a contractor has violated or ensure compliance with its worker safety and this policy with or without conditions. DOE
is continuing to violate a requirement of health regulations, and, in particular, will carefully consider the facts of each case
this part, the Director may issue to the exercise the civil penalty authority provided of noncompliance and will exercise
to DOE in section 3173 of Public Law 107– appropriate discretion in taking any
contractor a final notice of violation that enforcement action. Part of the function of a
states concisely the determined 314, Bob Stump National Defense
Authorization Act for Fiscal Year 2003 sound enforcement program is to assure a
violation and any remedy, including the (December 2, 2002) (‘‘NDAA’’), amending the proper and continuing level of safety
amount of any civil penalty imposed on Atomic Energy Act (‘‘AAEA’’) to add section vigilance. The reasonable exercise of
the contractor. The final notice of 234C. The policy set forth herein is enforcement authority will be facilitated by
violation must state that the contractor applicable to violations of safety and health the appropriate application of safety
may petition the Office of Hearings and regulations in this part by DOE contractors, requirements to DOE facilities and by
Appeals for review of the final notice in including DOE contractors who are promoting and coordinating the proper
indemnified under the Price Anderson Act, contractor and DOE safety compliance
accordance with 10 CFR part 1003, attitude toward those requirements.
subpart G. 42 U.S.C. 2210(d), and their subcontractors
and suppliers (hereafter collectively referred II. Purpose
(c) The Director must send a final to as DOE contractors). This policy statement
notice of violation by certified mail, is not a regulation and is intended only to The purpose of the DOE enforcement
return receipt requested. provide general guidance to those persons program is to promote and protect the safety
subject to the regulations in this part. It is not and health of workers at DOE facilities by:
(d) If a contractor fails to submit a (a) Ensuring compliance by DOE
intended to establish a ‘‘cookbook’’ approach
petition for review to the Office of contractors with the regulations in this part.
to the initiation and resolution of situations
Hearings and Appeals within 30 involving noncompliance with the (b) Providing positive incentives for DOE
calendar days of receipt of a final notice regulations in this part. Rather, DOE intends contractors:
of violation pursuant to § 851.45: to consider the particular facts of each (1) Timely self-identification of worker
noncompliance situation in determining safety deficiencies;
(1) The contractor relinquishes any
whether enforcement sanctions are (2) Prompt and complete reporting of such
right to appeal any matter in the final deficiencies to DOE;
notice; and appropriate and, if so, the appropriate
magnitude of those sanctions. DOE may well (3) Prompt correction of safety deficiencies
(2) The final notice, including any deviate from this policy statement when in a manner that precludes recurrence; and,
remedies therein, constitutes a final appropriate in the circumstances of (4) Identification of modifications in
order. particular cases. This policy statement is not practices or facilities that can improve
applicable to activities and facilities covered worker safety and health.
§ 851.404 Administrative appeal. under E.O. 12344, 42 U.S.C. 7158 note, (c) Deterring future violations of DOE
pertaining to Naval Nuclear Propulsion, or requirements by a DOE contractor.
(a) Any contractor that receives a final (d) Encouraging the continuous overall
notice of violation may petition the otherwise excluded from the scope of the
rule. improvement of operations at DOE facilities.
Office of Hearings and Appeals for
(b) The DOE goal in the compliance arena III. Statutory Authority
review of the final notice in accordance is to enhance and protect the safety and
with part 1003, subpart G of this title, The Department of Energy Organization
health of workers at DOE facilities by Act, 42 U.S.C. 7101–7385o, the Energy
within 30 calendar days from receipt of fostering a culture among both the DOE line Reorganization Act of 1974 (ERA), 42 U.S.C.
the final notice. organizations and the contractors that 5801–5911, and the Atomic Energy Act of
(b) In order to exhaust administrative actively seeks to attain and sustain 1954, as amended, (AEA) 42 U.S.C. 2011,
remedies with respect to a final notice compliance with the regulations in this part. require DOE to protect the public safety and
The enforcement program and policy have health, as well as the safety of workers at
of violation, the contractor must petition
been developed with the express purpose of DOE facilities, in conducting its activities,
the Office of Hearings and Appeals for achieving safety inquisitiveness and
review in accordance with paragraph (a) and grant DOE broad authority to achieve
voluntary compliance. DOE will establish this goal. Section 234C of the AEA makes
of this section. effective administrative processes and DOE contractors covered by the DOE Price-
positive incentives to the contractors for the Anderson indemnification system, and it
§ 851.405 Direction to NNSA contractors. open and prompt identification and reporting makes their subcontractors and suppliers
(a) Notwithstanding any other of noncompliances, performance of effective subject to civil penalties for violations of the
provision of this part, the NNSA root cause analysis, and initiation of worker safety and health requirements
Administrator, rather than the Director, comprehensive corrective actions to resolve promulgated in this part. 42 U.S.C. 2282c.
both noncompliance conditions and program
signs, issues and serves the following IV. Responsibilities
or process deficiencies that led to
actions that direct NNSA contractors: noncompliance. (a) The Director, as the principal
(1) Subpoenas; (c) In the development of the DOE enforcement officer of the DOE, has been
(2) Orders to compel attendance; enforcement policy, DOE recognizes that the delegated the authority to: (1) Conduct
reasonable exercise of its enforcement enforcement inspections, investigations, and
(3) Disclosures of information or authority can help to reduce the likelihood conferences; (2) issue Notices of Violations
documents obtained during an of serious incidents. This can be and proposed civil penalties, Enforcement
investigation or inspection; accomplished by providing greater emphasis Letters, Consent Orders, and subpoenas; and
(4) Preliminary notices of violations; on a culture of safety in existing DOE (3) issue orders to compel attendance and
and operations, and strong incentives for disclosure of information or documents
contractors to identify and correct obtained during an investigation or
(5) Final notices of violations.
noncompliance conditions and processes in inspection. The Secretary issues Compliance
(b) The NNSA Administrator shall act order to protect human health and the Orders.
after consideration of the Director’s environment. DOE wants to facilitate, (b) The NNSA Administrator, rather than
recommendation. encourage, and support contractor initiatives the Director, signs, issues and serves the
following actions that direct NNSA worker safety and health requirements are an isolated occurrence. The relative weight
contractors: (1) Subpoenas; (2) Orders to categorized in two levels of severity to given to each of these factors in arriving at
compel attendance; (3) Disclosure of identify their relative seriousness. Notices of the appropriate severity level will be
information or documents obtained during an Violation issued for noncompliance when dependent on the circumstances of each case.
investigation or inspection; (4) Preliminary appropriate, propose civil penalties (f) DOE expects contractors to provide full,
Notices of Violations; and (5) Final Notices commensurate with the severity level of the complete, timely, and accurate information
of Violations. The NNSA Administrator acts violations involved. and reports. Accordingly, the severity level of
after consideration of the Director’s (b) To assess the potential safety and health a violation involving either failure to make a
recommendation. impact of a particular violation, DOE will required report or notification to the DOE or
categorize violations of worker safety and an untimely report or notification will be
V. Procedural Framework health requirements as follows: based upon the significance of, and the
(a) Title 10 CFR part 851 sets forth the (1) A Severity Level I violation is a serious circumstances surrounding, the matter that
procedures DOE will use in exercising its violation. A serious violation shall be should have been reported. A contractor will
enforcement authority, including the deemed to exist in a place of employment if not normally be cited for a failure to report
issuance of Notices of Violation and the there is a potential that death or serious a condition or event unless the contractor
resolution of an administrative appeal in the physical harm could result from a condition was actually aware or should have been
event a DOE contractor elects to petition the which exists, or from one or more practices, aware of the condition or event which it
Office of Hearings and Appeals for review. means, methods, operations, or processes failed to report.
(b) Pursuant to 10 CFR part 851 subpart E, which have been adopted or are in use, in (g) The Director may consider the extent to
the Director initiates the enforcement process such place of employment. A Severity Level which facility-related and legacy hazards
by initiating and conducting investigations I violation would be subject to a base civil have been mitigated through the use of
and inspections and issuing a Preliminary penalty of up to 100% of the maximum base administrative controls and/or personal
Notice of Violation (PNOV) with or without civil penalty of $70,000. protective equipment in determining whether
a proposed civil penalty. The DOE contractor (2) A Severity Level II violation is an other- a citation will be issued.
is required to respond in writing to the PNOV than-serious violation. An other-than-serious
within 30 days, either: (1) Admitting the violation occurs where the most serious VII. Enforcement Conferences
violation and waiving its right to contest the injury or illness that would potentially result (a) Should DOE determine, after
proposed civil penalty and paying it; (2) from a hazardous condition cannot completion of all assessment and
admitting the violation but asserting the reasonably be predicted to cause death or investigation activities associated with a
existence of mitigating circumstances that serious physical harm to employees but does potential or alleged violation of the worker
warrant either the total or partial remission have a direct relationship to their safety and safety and health requirements, that there is
of the civil penalty; or (3) denying that the health. A Severity Level II violation would be a reasonable basis to believe that a violation
violation has occurred and providing the subject to a base civil penalty up to 50% of has actually occurred, and the violation may
basis for its belief that the PNOV is incorrect. the maximum base civil penalty ($35,000). warrant a civil penalty or issuance of an
After evaluation of the DOE contractor’s (c) De minimis violations, defined as a enforcement action, DOE will normally hold
response, the Director may determine: (1) deviation from the requirement of a standard an enforcement conference with the DOE
that no violation has occurred; (2) that the that has no direct or immediate relationship contractor involved prior to taking final
violation occurred as alleged in the PNOV to safety or health, will not be the subject of enforcement action. The enforcement
but that the proposed civil penalty should be formal enforcement action through the conference may be conducted onsite at the
remitted in whole or in part, or; (3) that the issuance of a Notice of Violation. conclusion of a field investigation/
violation occurred as alleged in the PNOV (d) The severity level of a violation will be inspection. DOE may also elect to hold an
and that the proposed civil penalty is dependent, in part, on the degree of enforcement conference for potential
appropriate, notwithstanding the asserted culpability of the DOE contractor with regard violations which would not ordinarily
mitigating circumstances. In the latter two to the violation. Thus, inadvertent or warrant a civil penalty or enforcement action
instances, the Director will issue a Final negligent violations will be viewed but which could, if repeated, lead to such
Notice of Violation (FNOV) or an FNOV and differently from those in which there is gross action. The purpose of the enforcement
proposed civil penalty. negligence, deception, or willfulness. In conference is to: (1) Assure the accuracy of
(c) An opportunity to challenge an FNOV addition to the significance of the underlying the facts upon which the preliminary
is provided in administrative appeal violation and level of culpability involved, determination to consider enforcement action
provisions. 10 CFR 851.45. Any contractor DOE will also consider the position, training is based; (2) discuss the potential or alleged
that receives an FNOV may petition the and experience of the person involved in the violations, their significance and causes, and
Office of Hearings and Appeals for review of violation. Thus, for example, a violation may the nature of and schedule for the DOE
the final notice in accordance with 10 CFR be deemed to be more significant if a senior contractor’s corrective actions; (3) determine
part 1003, Subpart G, within 30 calendar manager of an organization is involved rather whether there are any aggravating or
days from receipt of the final notice. An than a foreman or non-supervisory employee. mitigating circumstances; and (4) obtain
administrative appeal proceeding is not In this regard, while management other information which will help determine
initiated until the DOE contractor against involvement, direct or indirect, in a violation whether enforcement action is appropriate
which an FNOV has been issued requests an may lead to an increase in the severity level and, if so, the extent of that enforcement
administrative hearing rather than waiving of a violation and proposed civil penalty, the action.
its right to contest the FNOV and proposed lack of such involvement will not constitute (b) DOE contractors will be informed prior
civil penalty, if any, and paying the civil grounds to reduce the severity level of a to a meeting when that meeting is considered
penalty. However, it should be emphasized violation or mitigate a civil penalty. to be an enforcement conference. Such
that DOE encourages the voluntary resolution Allowance of mitigation in such conferences are informal mechanisms for
of a noncompliance situation at any time, circumstances could encourage lack of candid pre-decisional discussions regarding
either informally prior to the initiation of the management involvement in DOE contractor potential or alleged violations and will not
enforcement process or by consent order activities and a decrease in protection of normally be open to the public. In
before or after any formal proceeding has worker safety and health. circumstances for which immediate
begun. (e) Other factors which will be considered enforcement action is necessary in the
by DOE in determining the appropriate interest of worker safety and health, such
VI. Severity of Violations severity level of a violation are the duration action will be taken prior to the enforcement
(a) Violations of the worker safety and of the violation, the past performance of the conference, which may still be held after the
health requirements in this part have varying DOE contractor in the particular activity area necessary DOE action has been taken.
degrees of safety and health significance. involved, whether the DOE contractor had
Therefore, the relative importance of each prior notice of a potential problem, and VIII. Enforcement Letter
violation must be identified as the first step whether there are multiple examples of the (a) In cases where DOE has decided not to
in the enforcement process. Violations of the violation in the same time frame rather than conduct an investigation or inspection or
issue a Preliminary Notice of Violation setting forth the conclusion of DOE that one nature and extent of compliance with the
(PNOV), DOE may send an Enforcement or more violations of the worker safety and requirements of this part, before pursuing
Letter to the contractor, signed by the health requirements have occurred. Such a contract fee reduction in the event of a
Director. The Enforcement Letter is intended notice normally requires the recipient to violation relating to the enforcement of
to communicate the basis of the decision not provide a written response which may take worker safety and health concerns. Likewise,
to pursue enforcement action for a one of several positions described in section the Director must coordinate with the
noncompliance. The Enforcement Letter is V of this policy statement. In the event that contracting officer when conducting
intended to direct contractors to the desired the recipient concedes the occurrence of the investigations and pursuing an enforcement
level of worker safety and health violation, it is required to describe corrective action.
performance. It may be used when DOE steps which have been taken and the results (3) For the same violation of a worker
concludes the specific noncompliance at achieved; remedial actions which will be safety and health requirement in this part,
issue is not of the level of significance taken to prevent recurrence; and the date by DOE may pursue either civil penalties (for
warranted to conduct an investigation or which full compliance will be achieved. indemnified contractors and their
inspection or for issuance of a PNOV. Even (b) DOE will use the Notice of Violation as subcontractors and suppliers) or a contract
where a noncompliance may be significant, the standard method for formalizing the fee reduction, but not both. 10 CFR 851.4(d).
the Enforcement Letter recognizes that the existence of a violation and, in appropriate (4) An upper ceiling applies to civil
contractor’s actions may have attenuated the cases as described in this section, the Notice penalties assessed on certain contractors
need for enforcement action. The of Violation will be issued in conjunction specifically listed in 170d. of the Atomic
Enforcement Letter will typically recognize with the proposed imposition of a civil Energy Act, 42 U.S.C. 2282a(d), for activities
how the contractor handled the penalty. In certain limited instances, as conducted at specified facilities. For these
circumstances surrounding the described in this section, DOE may refrain contractors, the total amount of civil
from the issuance of an otherwise penalties and contract penalties in a fiscal
noncompliance, address additional areas
appropriate Notice of Violation. However, a year may not exceed the total amount of fees
requiring the contractor’s attention, and
Notice of Violation will virtually always be paid by DOE to that entity in that fiscal year.
address DOE’s expectations for corrective
issued for willful violations, or if past 10 CFR 851.4(e).
action.
corrective actions for similar violations have (5) DOE will not issue civil penalties under
(b) In general, Enforcement Letters both this part and under the nuclear safety
communicate DOE’s expectations with not been sufficient to prevent recurrence and
there are no other mitigating circumstances, procedural regulations in 10 CFR part 820 for
respect to any aspect of the requirements of the same violation. 10 CFR 851.4(f).
this part, including identification and or if the circumstances otherwise warrant
increasing lower severity level violations to (f) The Director will coordinate all
reporting of issues, corrective actions, and violations with the appropriate DOE official
implementation of the contractor’s safety and a higher severity level.
(c) DOE contractors are not ordinarily cited responsible for administering the Conditional
health program. DOE might, for example, Payment of Fee clause to consider invoking
wish to recognize some action of the for violations resulting from matters not
within their control, such as equipment the provisions for reducing contract fees if
contractor that is of particular benefit to the violation: (1) Is especially egregious; (2)
worker safety and health that is a candidate failures that were not avoidable by
reasonable quality assurance measures, indicates a general failure to perform under
for emulation by other contractors. On the the contract with respect to worker safety and
other hand, DOE may wish to bring a proper maintenance, or management
health; or (3) where the responsible DOE line
program shortcoming to the attention of the controls. With regard to the issue of funding,
management believes a violation requires
contractor that, but for the lack of worker however, DOE does not consider an asserted
swift enforcement and corrective action. The
safety and health significance of the lack of funding to be a justification for
responsible DOE line management would
immediate issue, might have resulted in the noncompliance with the worker safety and
focus on factors such as willfulness, repeated
issuance of a PNOV. An Enforcement Letter health requirements.
violations, death, serious injury, patterns of
is not an enforcement action. (d) DOE expects the contractors which
systemic violations, flagrant DOE-identified
(c) With respect to many noncompliances, operate its facilities to have the proper
violations, repeated poor performance in an
an Enforcement Letter may not be required. management and supervisory systems in area of concern, or serious breakdown in
When DOE decides that a contractor has place to assure that all activities at DOE management controls. Such factors involved
appropriately corrected a noncompliance or facilities, regardless of who performs them, in a violation would call into question a
that the significance of the noncompliance is are carried out in compliance with all the contractor’s commitment and ability to
sufficiently low, it may close out its review worker safety and health requirements. achieve the fundamental obligation of
simply through an annotation in the DOE Therefore, contractors are normally held providing safe and healthy workplaces for
Noncompliance Tracking System (NTS). A responsible for the acts of their employees workers. A notice of violation may still be
closeout of a noncompliance with or without and subcontractor employees in the conduct issued should the election of a contract fee
an Enforcement Letter may only take place of activities at DOE facilities. Accordingly, reduction be made. In such cases, the notice
after DOE has confirmed that corrective this policy should not be construed to excuse of violation will not include a civil penalty.
actions have been completed. personnel errors. The notice of violation will indicate that no
(e) The limitations on remedies under Sec. civil penalty is being imposed because DOE
IX. Enforcement Actions 234C will be implemented as follows: has elected a contract fee reduction as the
(a) This section describes the enforcement (1) DOE may assess civil penalties of up to remedy.
sanctions available to DOE and specifies the $70,000 per violation per day on contractors
conditions under which each may be used. (and their subcontractors and suppliers) that 2. Civil Penalty
The basic sanctions are Notices of Violation are indemnified by the Price-Anderson Act, (a) A civil penalty is a monetary penalty
and civil penalties. 42 U.S.C. 2210(d). 10 CFR 851.4(c). DOE will that may be imposed for violations of
(b) The nature and extent of the not assess civil penalties on contractors (and requirements of this part. See 10 CFR
enforcement action is intended to reflect the their subcontractors and suppliers) that are 851.4(b). Civil penalties are designed to
seriousness of the violation involved. For the not indemnified under the Price-Anderson emphasize the need for lasting remedial
vast majority of violations for which DOE Act. action, deter future violations, and
assigns severity levels as described (2) DOE may seek contract fee reductions underscore the importance of DOE contractor
previously, a Notice of Violation will be through the contract’s Conditional Payment self-identification, reporting, and correction
issued, requiring a formal response from the of Fee Clause in the Department of Energy of violations of the worker safety and health
recipient describing the nature of and Acquisition Regulation (DEAR). See 10 CFR requirements in this part.
schedule for corrective actions it intends to 851.4(b); 48 CFR parts 923, 952, 970. Policies (b) Absent mitigating circumstances as
take regarding the violation. for contract fee reductions are not established described below, or circumstances otherwise
by this policy statement. The contracting warranting the exercise of enforcement
1. Notice of Violation officer must coordinate with the Director, the discretion by DOE as described in this
(a) A Notice of Violation (either a DOE Official to whom the Secretary has section, civil penalties will be proposed for
Preliminary or Final Notice) is a document assigned the authority to investigate the Severity Level I and II violations.
(c) DOE will impose different base level health requirements in this part, and civil violation and promptly reports the violation
penalties considering the severity level of the penalties are intended to emphasize the to the DOE. In weighing this factor,
violation by Price-Anderson indemnified importance of compliance and to deter future consideration will be given to, among other
contractors. Table A–1 shows the daily base violations. The single most important goal of things, the opportunity available to discover
civil penalties for the various categories of the DOE enforcement program is to the violation, the ease of discovery and the
severity levels. However, as described above encourage early identification and reporting promptness and completeness of any
in section IV, the imposition of civil of worker protection deficiencies and required report. No consideration will be
penalties will also take into account the violations of the worker safety and health given to a reduction in penalty if the DOE
gravity, circumstances, and extent of the requirements in this part by the DOE contractor does not take prompt action to
violation or violations and, with respect to contractors themselves rather than by DOE, report the problem to DOE upon discovery,
the violator, any history of prior similar and the prompt correction of any deficiencies or if the immediate actions necessary to
violations and the degree of culpability and and violations so identified. DOE believes restore compliance with the worker safety
knowledge. that DOE contractors are in the best position and health requirements are not taken.
(d) Enforcement personnel will utilize risk- to identify and promptly correct 5. Self-Identification and Tracking Systems
based criteria to assist the Director in noncompliance with the worker safety and
determining appropriate civil penalties for health requirements in this part. DOE expects (a) DOE strongly encourages contractors to
violations found during investigations and that these contractors should have in place self-identify noncompliances with the worker
inspections. internal compliance programs which will safety and health requirements before the
(e) Regarding the factor of ability of DOE ensure the detection, reporting, and prompt noncompliances lead to a string of similar
contractors to pay the civil penalties, it is not correction of worker protection-related and potentially more significant events or
DOE’s intention that the economic impact of problems that may constitute, or lead to, consequences. When a contractor identifies a
a civil penalty be such that it puts a DOE noncompliance through its own self-
violations of the worker safety and health
contractor out of business. Contract monitoring activity, DOE will normally allow
requirements in this part, before, rather than
termination, rather than civil penalties, is a reduction in the amount of civil penalties,
after, DOE has identified such violations.
used when the intent is to terminate these unless prior opportunities existed for
Thus, DOE contractors will almost always be
activities. The deterrent effect of civil contractors to identify the noncompliance.
aware of worker safety and health problems DOE will normally not allow a reduction in
penalties is best served when the amount of before they are discovered by DOE.
such penalties takes this factor into account. civil penalties for self-identification if
Obviously, worker safety and health is significant DOE intervention was required to
However, DOE will evaluate the relationship enhanced if deficiencies are discovered (and
of affiliated entities to the contractor (such as induce the contractor to report a
promptly corrected) by the DOE contractor, noncompliance.
parent corporations) when the contractor rather than by DOE, which may not
asserts that it cannot pay the proposed (b) Self-identification of a noncompliance
otherwise become aware of a deficiency until is possibly the single most important factor
penalty. later on, during the course of an inspection,
(f) DOE will review each case involving a in considering a reduction in the civil
performance assessment, or following an penalty amount. Consideration of self-
proposed civil penalty on its own merits and incident at the facility. Early identification of
adjust the base civil penalty values upward identification is linked to, among other
worker safety and health-related problems by things, whether prior opportunities existed to
or downward appropriately. As indicated DOE contractors has the added benefit of
above, Table A–1 identifies the daily base discover the violation, and if so, the age and
allowing information which could prevent number of such opportunities; the extent to
civil penalty values for different severity such problems at other facilities in the DOE
levels. After considering all relevant which proper contractor controls should
complex to be shared with all appropriate have identified or prevented the violation;
circumstances, civil penalties may be raised DOE contractors.
or lowered based upon the adjustment factors whether discovery of the violation resulted
(b) Pursuant to this enforcement from a contractor’s self-monitoring activity;
described below in this section. In no philosophy, DOE will provide substantial
instance will a civil penalty for any one the extent of DOE involvement in discovering
incentive for the early self-identification, the violation or in prompting the contractor
violation exceed the statutory limit of reporting, and prompt correction of problems
$70,000. However, it should be emphasized to identify the violation; and the promptness
which constitute, or could lead to, violations and completeness of any required report.
that if the DOE contractor is or should have of the worker safety and health requirements.
been aware of a violation and has not Self-identification is also considered by DOE
Thus, application of the adjustment factors in deciding whether to pursue an
reported it to DOE and taken corrective set forth below may result in a reduced or no
action despite an opportunity to do so, each investigation.
civil penalty being assessed for violations (c) DOE will use the voluntary
day the condition existed may be considered that are identified, reported, and promptly
a separate violation and, as such, subject to Noncompliance Tracking System (NTS)
and effectively corrected by the DOE which allows contractors to elect to report
a separate civil penalty. Further, as described
contractor. noncompliances. In the guidance document
in this section, the duration of a violation
(c) On the other hand, ineffective programs supporting the NTS, DOE will establish
will be taken into account in determining the
for problem identification and correction are reporting thresholds for reporting items of
appropriate severity level of the base civil
unacceptable. Thus, for example, where a noncompliance of potentially greater worker
penalty.
contractor fails to disclose and promptly safety and health significance into the NTS.
correct violations of which it was aware or Contractors are expected, however, to use
TABLE A–1.—SEVERITY LEVEL BASE should have been aware, substantial civil their own self-tracking systems to track
CIVIL PENALTIES penalties are warranted and may be sought, noncompliances below the reporting
including the assessment of civil penalties threshold. This self-tracking is considered to
Base civil for continuing violations on a per day basis. be acceptable self-reporting as long as DOE
penalty (d) Further, in cases involving factors of has access to the contractor’s system and the
amount willfulness, repeated violations, death, contractor’s system notes the item as a
Severity level (Percentage serious injury, patterns of systemic noncompliance with a DOE safety and health
of maximum violations, flagrant DOE-identified violations, requirement. For noncompliances that are
per violation
per day) repeated poor performance in an area of below the reportability thresholds, DOE will
concern, or serious breakdown in credit contractor self-tracking as representing
I ........................................... 100 management controls, DOE intends to apply self-reporting. If an item is not reported in
II .......................................... 50 its full statutory enforcement authority where NTS but only tracked in the contractor’s
such action is warranted. system and DOE subsequently finds the facts
and their worker safety and health
3. Adjustment Factors 4. Identification and Reporting significance have been significantly
(a) DOE’s enforcement program is not an Reduction of up to 50% of the base civil mischaracterized, DOE will not credit the
end in itself, but a means to achieve penalty shown in Table A–1 may be given internal tracking as representing appropriate
compliance with the worker safety and when a DOE contractor identifies the self-reporting.
6. Self-Disclosing Events corrective action is not prompt or if the an inspection or assessment, a formal
(a) DOE expects contractors to demonstrate corrective action is only minimally response from the contractor is not required
acceptance of responsibility for worker safety acceptable. In weighing this factor, and the inspection or integrated performance
and health by proactively identifying consideration will be given to, among other assessment report serves to document the
noncompliance conditions in their programs things, the appropriateness, timeliness and violation and the corrective action. However,
and processes. When the occurrence of an degree of initiative associated with the in all instances, the contractor is required to
event discloses noncompliances that the corrective action. The comprehensiveness of report the noncompliance through
contractor could have or should have the corrective action will also be considered, established reporting mechanisms so the
identified before the event, DOE will not taking into account factors such as whether noncompliance issue and any corrective
generally allow a reduction in civil penalties the action is focused narrowly to the specific actions can be properly tracked and
for self-identification, even if the underlying violation or broadly to the general area of monitored.
noncompliances were reported to DOE. In concern. (d) If DOE initiates an enforcement action
deciding whether to reduce any civil penalty for a violation, and as part of the corrective
8. DOE’s Contribution to a Violation action for that violation, the DOE contractor
proposed for violations revealed by the
occurrence of a self-disclosing event, DOE There may be circumstances in which a identifies other examples of the violation
will consider the ease with which a violation of a DOE worker safety and health with the same root cause, DOE may refrain
contractor could have discovered the requirement results, in part or entirely, from from initiating an additional enforcement
noncompliance and the prior opportunities a direction given by DOE personnel to a DOE action. In determining whether to exercise
that existed to discover the noncompliance. contractor to either take or forbear from this discretion, DOE will consider whether
If a contractor simply reacts to events that taking an action at a DOE facility. In such the DOE contractor acted reasonably and in
disclose potentially significant consequences cases, DOE may refrain from issuing an NOV, a timely manner appropriate to the safety
or downplays noncompliances which did not or may mitigate, either partially or entirely, significance of the initial violation, the
result in significant consequences to worker any proposed civil penalty, provided that the comprehensiveness of the corrective action,
safety and health, such contractor actions do direction upon which the DOE contractor whether the matter was reported, and
not constitute the type of proactive behavior relied is documented in writing, whether the additional violation(s)
necessary to prevent significant events from contemporaneously with the direction. It substantially change the safety significance
occurring and thereby to the improvement in should be emphasized, however, that or character of the concern arising out of the
worker safety and health. pursuant to 10 CFR 851.5, no interpretation initial violation.
(b) The key test is whether the contractor of a requirement of this part is binding upon (e) It should be emphasized that the
reasonably could have detected any of the DOE unless issued in writing by the Office preceding paragraphs are solely intended to
underlying noncompliances that contributed of the General Counsel. Further, as discussed be examples indicating when enforcement
to the event. Examples of events that provide above in this policy statement, lack of discretion may be exercised to forego the
opportunities to identify noncompliances funding by itself will not be considered as a issuance of a civil penalty or, in some cases,
include, but are not limited to: mitigating factor in enforcement actions. the initiation of any enforcement action at
(1) Prior notifications of potential problems all. However, notwithstanding these
9. Exercise of Discretion
such as those from DOE operational examples, a civil penalty may be proposed or
experience publications or vendor equipment Because DOE wants to encourage and Notice of Violation issued when, in DOE’s
deficiency reports; support DOE contractor initiative for prompt judgment, such action is warranted on the
(2) Normal surveillance, quality assurance self-identification, reporting and correction basis of the circumstances of an individual
performance assessments, and post- of problems, DOE may exercise discretion as case.
maintenance testing; follows:
(3) Readily observable parameter trends; (a) In accordance with the previous X. Inaccurate and Incomplete Information
and discussion, DOE may refrain from issuing a (a) A violation of the worker safety and
(4) Contractor employee or DOE civil penalty for a violation which meets all health requirements to provide complete and
observations of potential worker safety and of the following criteria: accurate information to DOE, 10 CFR 851.7,
health problems. (1) The violation is promptly identified can result in the full range of enforcement
(c) Failure to utilize these types of events and reported to DOE before DOE learns of it sanctions, depending upon the circumstances
and activities to address noncompliances or the violation is identified by a DOE of the particular case and consideration of
may result in higher civil penalty independent assessment, inspection or other the factors discussed in this section.
assessments or a DOE decision not to reduce formal program effort. Violations involving inaccurate or
civil penalty amounts. (2) The violation is not willful or a incomplete information or the failure to
(d) Alternatively, if, following a self- violation that could reasonably be expected provide significant information identified by
disclosing event, DOE finds that the to have been prevented by the DOE a DOE contractor normally will be
contractor’s processes and procedures were contractor’s corrective action for a previous categorized based on the guidance in section
adequate and the contractor’s personnel violation. VI, ‘‘Severity of Violations.’’
generally behaved in a manner consistent (3) The DOE contractor, upon discovery of (b) DOE recognizes that oral information
with the contractor’s processes and the violation, has taken or begun to take may in some situations be inherently less
procedures, DOE could conclude that the prompt and appropriate action to correct the reliable than written submittals because of
contractor could not have been reasonably violation. the absence of an opportunity for reflection
expected to find the single procedural (4) The DOE contractor has taken, or has and management review. However, DOE
noncompliance that led to the event and agreed to take, remedial action satisfactory to must be able to rely on oral communications
thus, might allow a reduction in civil DOE to preclude recurrence of the violation from officials of DOE contractors concerning
penalties. and the underlying conditions which caused significant information. In determining
it. whether to take enforcement action for an
7. Corrective Action To Prevent Recurrence (b) DOE will not issue a Notice of Violation oral statement, consideration will be given to
The promptness (or lack thereof) and for cases in which the violation discovered such factors as:
extent to which the DOE contractor takes by the DOE contractor cannot reasonably be (1) The degree of knowledge that the
corrective action, including actions to linked to the conduct of that contractor in the communicator should have had regarding the
identify root cause and prevent recurrence, design, construction or operation of the DOE matter in view of his or her position, training,
may result in an increase or decrease in the facility involved, provided that prompt and and experience;
base civil penalty shown in Table A–1. For appropriate action is taken by the DOE (2) The opportunity and time available
example, very extensive corrective action contractor upon identification of the past prior to the communication to assure the
may result in DOE’s reducing the proposed violation to report to DOE and remedy the accuracy or completeness of the information;
civil penalty up to 50% from the base value problem. (3) The degree of intent or negligence, if
shown in Table A–1. On the other hand, the (c) In situations where corrective actions any, involved;
civil penalty may be increased if initiation of have been completed before termination of (4) The formality of the communication;
(5) The reasonableness of DOE reliance on normally will be dependent on the contractor does not identify as significant
the information; circumstances, including the ease of normally will not constitute a separate
(6) The importance of the information that detection of the error, the timeliness of the violation. However, the circumstances
was wrong or not provided; and correction, whether DOE or the DOE surrounding the failure to correct may be
(7) The reasonableness of the explanation contractor identified the problem with the considered relevant to the determination of
for not providing complete and accurate communication, and whether DOE relied on enforcement action for the initial inaccurate
information. the information prior to the correction. or incomplete statement. For example, an
(c) Absent gross negligence or willfulness, Generally, if the matter was promptly unintentionally inaccurate or incomplete
an incomplete or inaccurate oral statement identified and corrected by the DOE submission may be treated as a more severe
normally will not be subject to enforcement contractor prior to reliance by DOE, or before matter if a DOE contractor later determines
action unless it involves significant DOE raised a question about the information, that the initial submission was in error and
information provided by an official of a DOE no enforcement action will be taken for the does not promptly correct it or if there were
contractor. However, enforcement action may initial inaccurate or incomplete information. clear opportunities to identify the error.
be taken for an unintentionally incomplete or On the other hand, if the misinformation is
inaccurate oral statement provided to DOE by identified after DOE relies on it, or after some XI. Secretarial Notification and Consultation
an official of a DOE contractor or others on question is raised regarding the accuracy of The Secretary will be provided written
behalf of the DOE contractor, if a record was the information, then some enforcement notification of all enforcement actions
made of the oral information and provided to action normally will be taken even if it is in involving proposed civil penalties. The
the DOE contractor, thereby permitting an fact corrected. Secretary will be consulted prior to taking
opportunity to correct the oral information, (e) If the initial submission was accurate action in the following situations:
such as if a transcript of the communication when made but later turns out to be (a) Any action the Director, or the NNSA
or meeting summary containing the error was erroneous because of newly discovered Administrator concerning actions involving
made available to the DOE contractor and information or advances in technology, a NNSA contractors, believes warrants the
was not subsequently corrected in a timely citation normally would not be appropriate Secretary’s involvement; or
manner. if, when the new information became (b) Any proposed enforcement action for
(d) When a DOE contractor has corrected available, the initial submission was which the Secretary asks to be consulted.
inaccurate or incomplete information, the promptly corrected.
decision to issue a citation for the initial (f) The failure to correct inaccurate or [FR Doc. 05–1203 Filed 1–25–05; 8:45 am]
inaccurate or incomplete information incomplete information that the DOE BILLING CODE 6450–01–P

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TABLE 1.—NATIONAL FIRE PROTECTION ASSOCIATION CODES AND STANDARDS

1 .................................. Uniform Fire Code ......................................................................................................................................... 2003

TABLE 1.—NATIONAL FIRE PROTECTION ASSOCIATION CODES AND STANDARDS—Continued

TABLE 1.—NATIONAL FIRE PROTECTION ASSOCIATION CODES AND STANDARDS—Continued

TABLE 2.—ASME BOILER AND PRESSURE VESSEL CODE (2004)

I ........................................................................................................... Power Boilers.

TABLE 3.—ANSI/ASME PIPING CODES

B31.1 ........................... Power Piping .................................................................................................................................................. 2001

TABLE 4.—ASME CODES FOR VALVES, FITTINGS, FLANGES AND GASKETS

TABLE 5.—CODES AND STANDARDS FOR ADDITIONAL PRESSURE RETAINING COMPONENTS

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